Sontos Diaz-Reynoso v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SONTOS MAUDILIA DIAZ-REYNOSO, No. 18-72833
AKA Sontos Maurilla Diaz-
Reynoso, Agency No.
Petitioner, A205-256-857
v.
OPINION
WILLIAM P. BARR, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 24, 2020*
San Francisco, California
Filed August 7, 2020
Before: Ronald M. Gould, Morgan Christen,
and Daniel A. Bress, Circuit Judges.
Opinion by Judge Christen;
Partial Concurrence and Partial Dissent by Judge Bress
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 DIAZ-REYNOSO V. BARR
SUMMARY**
Immigration
Granting Sontos Diaz-Reynoso’s petition for review of
the Board of Immigration Appeals’ decision affirming the
denial of her application for withholding of removal and
protection under the Convention Against Torture, and
remanding, the panel held that the Board misapplied Matter
of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board
and circuit precedent, in concluding that Diaz-Reynoso’s
proposed social group comprised of “indigenous women in
Guatemala who are unable to leave their relationship” was
not cognizable, and that she failed to establish that the
government of Guatemala would acquiesce in any possible
torture.
The panel rejected Diaz-Reynoso’s contention that Matter
of A-B- was arbitrary and capricious and therefore not entitled
to Chevron deference. The panel concluded that, despite the
general and descriptive observations set forth in the opinion,
Matter of A-B- did not announce a new categorical exception
to withholding of removal for victims of domestic violence or
other private criminal activity, but rather it reaffirmed the
Board’s existing framework for analyzing the cognizability
of particular social groups, requiring that such determinations
be individualized and conducted on a case-by-case basis.
The panel observed that the Board rejected Diaz-
Reynoso’s proposed social group, with almost no analysis,
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DIAZ-REYNOSO V. BARR 3
because it “suffered from the same circularity problem
articulated by the Attorney General in Matter of A-B-.” The
panel explained that in doing so, the Board appeared to
misapprehend the scope of Matter of A-B- as forbidding any
mention of feared harm within the delineation of a proposed
social group. The panel concluded that this was error,
explaining that Matter of A-B- did not announce a new rule
concerning circularity, but instead merely reiterated the well-
established principle that a particular social group must exist
independently of the harm asserted. The panel recognized
that a proposed social group may be deemed impermissibly
circular if, after conducting the proper case-by-case analysis,
the Board determines that the group is defined exclusively by
the fact that its members have been subjected to harm. The
panel explained, however, that a proposed social group is not
impermissibly circular merely because the proposed group
mentions harm.
The panel concluded that the Board also erred in
assuming that domestic violence was the only reason Diaz-
Reynoso was unable to leave her relationship, and in failing
to conduct the rigorous case-by-case analysis required by
Matter of A-B-. The panel therefore remanded Diaz-
Reynoso’s withholding of removal claim for the Board to
undertake the required analysis applying the correct
framework.
Because the Board failed to discuss evidence that Diaz-
Reynoso reported her husband’s abuse to authority figures in
her village community, and the government conceded remand
was warranted, the panel also remanded Diaz-Reynoso’s
CAT claim for further consideration.
4 DIAZ-REYNOSO V. BARR
Concurring in the judgment in part and dissenting in part,
Judge Bress agreed with remand of the CAT claim in light of
the government’s concession, but disagreed with the
majority’s conclusion that the Board misread Matter of A-B-
in rejecting Diaz-Reynoso’s proposed social group. In Judge
Bress’s view, Matter of A-B- held that a proposed group that
incorporates harm within its definition is not a group that
exists independently of the harm asserted in an application for
asylum or statutory withholding of removal. Judge Bress
wrote that substantial evidence supported the Board’s
assessment that Diaz-Reynoso’s social group was defined
exclusively by the harm suffered, and that the Board correctly
applied Matter of A-B-, and the circularity rule, in rejecting
Diaz-Reynoso’s proposed social group.
COUNSEL
Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates,
Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf,
Certified Law Students; Hastings Appellate Project, San
Francisco, California; for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan
and Linda S. Wernery, Assistant Directors; Susan Bennett
Green, Senior Litigation Counsel; Ashley Martin, Trial
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and
Anne Peterson, Center for Gender & Refugee Studies, U.S.
Hastings College of Law, San Francisco, California, for
Amicus Curiae Center for Gender & Refugee Studies.
DIAZ-REYNOSO V. BARR 5
Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and
Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York
New York, for Amici Curiae Thirty-Nine Former
Immigration Judges and Members of the Board of
Immigration Appeals.
Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera,
Deborah Anker, and Zachary A. Albun, Attorneys; Rosa
Baum, Caya Simonsen, and Ana Sewell, Supervised Law
Students; Harvard Immigration and Refugee Clinical
Program, Cambridge, Massachusetts; for Amicus Curiae
Harvard Immigration and Refugee Clinical Program.
Ana C. Reyes and Alexander J. Kasner, Williams & Connolly
LLP, Washington, D.C.; Alice Farmer, United Nations High
Commissioner for Refugees, Washington, D.C.; for Amicus
Curiae United Nations High Commissioner for Refugees.
6 DIAZ-REYNOSO V. BARR
OPINION
CHRISTEN, Circuit Judge:
Sontos Maudilia Diaz-Reynoso, a native and citizen of
Guatemala, petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing her appeal of an
Immigration Judge’s (IJ) order denying her application for
withholding of removal and relief under the Convention
Against Torture (CAT). Diaz-Reynoso seeks withholding of
removal based on her fear that she would be persecuted in
Guatemala on account of her membership in the particular
social group of “indigenous women in Guatemala who are
unable to leave their relationship.” Diaz-Reynoso argues she
is entitled to relief under CAT because, if returned to
Guatemala, the Guatemalan government would acquiesce in
torture she would suffer at the hands of her husband.
On her withholding claim, the BIA concluded that Diaz-
Reynoso’s proposed particular social group was not
cognizable, relying on the Attorney General’s decision in
Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). With
respect to Diaz-Reynoso’s CAT claim, the BIA concluded
that Diaz-Reynoso failed to establish that the government of
Guatemala would acquiesce in any torture she might suffer.
Because the BIA’s decision on both bases for relief departs
from its own precedent and is contrary to this court’s case
law, we grant the petition for review and remand for further
proceedings.
I
Diaz-Reynoso was born in 1989 in the small, rural town
of Yamoj, in the Guatemalan highlands. She is a member of
DIAZ-REYNOSO V. BARR 7
the indigenous group known as Mam. In 2008, Diaz-Reynoso
moved in with a man named Arnoldo Vasquez-Juarez, who
is also Mam. Although they did not legally marry, Diaz-
Reynoso and Vasquez-Juarez had a common-law marriage
and Diaz-Reynoso refers to Vasquez-Juarez as her husband.
Vasquez-Juarez subjected Diaz-Reynoso to physical and
sexual abuse. Among other things, he forced Diaz-Reynoso
to work in the coffee fields without pay, and to have sex with
him. When Diaz-Reynoso did not comply with his demands,
Vasquez-Juarez attacked her, hitting her on her head and all
over her body, sometimes with a belt. Diaz-Reynoso testified
that she was attacked weekly, and that the resulting bruises
sometimes lasted for eight to ten days.
In 2012, after four years of living with Vasquez-Juarez,
Diaz-Reynoso fled and entered the United States without
documentation. She was apprehended, and after roughly a
month in detention, returned to Guatemala. Diaz-Reynoso
moved back in with her family in Yamoj.
As soon as Diaz-Reynoso returned, Vasquez-Juarez came
to find her. Vasquez-Juarez told Diaz-Reynoso that if she did
not return to live with him, he would kill her, kill her
daughter,1 or harm her mother. Diaz-Reynoso returned to live
with Vasquez-Juarez for about a year. The abuse got worse
during that time. Diaz-Reynoso then escaped and went to
live with a friend in another town for roughly a year. She was
in hiding during this period and did not leave her friend’s
house. After that, Diaz-Reynoso returned to her family home
1
Diaz-Reynoso had a daughter with a previous partner named Angel
Tomas Vasquez. Although Vasquez also subjected Diaz-Reynoso to
physical and sexual abuse, she has not heard from him since she left him.
8 DIAZ-REYNOSO V. BARR
in the hope that Vasquez-Juarez had forgotten about her, but
Vasquez-Juarez found Diaz-Reynoso and ordered her to come
back with him. At the urging of her mother, Diaz-Reynoso
again fled to the United States.
Diaz-Reynoso was apprehended near Topawa, Arizona on
October 29, 2014, and her prior removal order was reinstated
pursuant to 8 U.S.C. § 1231(a)(5). She pled guilty to illegal
entry in violation of 8 U.S.C. § 1325(a)(1), and was sentenced
to thirty days imprisonment.
While Diaz-Reynoso was in detention, an asylum officer
interviewed her and she expressed fear of returning to
Guatemala. The asylum officer concluded that she had
established a credible fear of persecution and referred her to
removal proceedings before an immigration judge. Diaz-
Reynoso filed an application for withholding of removal and
protection under CAT. In her counseled brief, Diaz-Reynoso
defined her particular social group as “Guatemalan
indigenous women who are unable to leave their
relationship,” and advanced evidence of a number of factors
that prevented her from leaving.
The IJ issued a written decision denying Diaz-Reynoso’s
application for withholding of removal and relief under CAT.
The IJ found Diaz-Reynoso credible, but concluded that
because much of her account was inconsistent with her own
testimony and other record evidence, “significant portions of
her testimony [were] entitled to little weight.” On the
withholding claim, the IJ did not rule on whether Diaz-
Reynoso established the existence of a cognizable particular
social group, but concluded that she did not establish
membership in her proffered particular social group, did not
show that she would more likely than not suffer persecution,
DIAZ-REYNOSO V. BARR 9
and did not demonstrate that the Guatemalan government
would be unable or unwilling to protect her. On her CAT
claim, the IJ concluded that Diaz-Reynoso failed to establish
she would more likely than not be tortured if removed to
Guatemala, and that she did not demonstrate that her past
abuse or feared future abuse would occur in the context of
government control, authority, or acquiescence. The IJ
further concluded that Diaz-Reynoso failed to seek protection
from law enforcement, and found she could safely and
reasonably avoid abusive conduct by relocating within
Guatemala. Diaz-Reynoso timely appealed to the BIA.
The BIA dismissed Diaz-Reynoso’s appeal. On
withholding, the BIA did not rely on the IJ’s rationale.
Instead, the BIA concluded that Diaz-Reynoso’s proposed
particular social group was not cognizable in light of Matter
of A-B-, 27 I. & N. Dec. at 316.2 On CAT, the BIA concluded
that Diaz-Reynoso had failed to establish that any
Guatemalan public official would more likely than not
consent to or acquiesce in any torture she may suffer.
II
We have jurisdiction to review final orders of removal
pursuant to 8 U.S.C. § 1252(a)(5). “Our review is limited to
those grounds explicitly relied upon by the [BIA].” Budiono
v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). Where the
BIA writes its own decision, as it did here, we review the
BIA’s decision, except to the extent it expressly adopts the
IJ’s decision. Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th
Cir. 2012).
2
The Attorney General decided Matter of A-B- after the IJ issued its
decision, but before the BIA ruled on Diaz-Reynoso’s appeal.
10 DIAZ-REYNOSO V. BARR
We review de novo the BIA’s determinations on
questions of law. Pirir-Boc v. Holder, 750 F.3d 1077, 1081
(9th Cir. 2014). We review for substantial evidence the
BIA’s factual findings, which “should be upheld ‘unless the
evidence compels a contrary result.’” Budiono, 837 F.3d
at 1046 (quoting Hernandez-Mancilla v. Holder, 633 F.3d
1182, 1184 (9th Cir. 2011)). Whether Diaz-Reynoso’s
particular social group is cognizable is a question of law.
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020);
see also Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir.
2019).
III
To qualify for withholding of removal, a petitioner must
demonstrate that, if removed to her home country, her life
would be threatened on account of any one of five
enumerated grounds: race, religion, nationality, membership
in a particular social group, or political opinion. Mendoza-
Alvarez v. Holder, 714 F.3d 1161, 1163–64 (9th Cir. 2013)
(per curiam). At issue here is “membership in a particular
social group”—specifically, the cognizability of Diaz-
Reynoso’s proffered social group. 8 U.S.C. § 1231(b)(3)(A);
see also Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir.
2016) (noting that establishing the “existence” of a
cognizable social group is a separate requirement from
establishing “membership” in the group).
The Attorney General’s and the BIA’s constructions of
ambiguous statutory terms are entitled to deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Pirir-Boc, 750 F.3d at 1081; Jiang
v. Holder, 611 F.3d 1086, 1091–92 (9th Cir. 2010). Because
we have already concluded that the phrase “particular social
DIAZ-REYNOSO V. BARR 11
group” is ambiguous, Henriquez-Rivas v. Holder, 707 F.3d
1081, 1083 (9th Cir. 2013) (en banc), we must adhere to an
agency interpretation of that term, so long as it is reasonable,
id. at 1087. An interpretation fails this step if it is “arbitrary
or capricious in substance.” Judulang v. Holder, 565 U.S. 42,
52 n.7 (2011) (quoting Mayo Found. for Med. Educ. &
Research v. United States, 562 U.S. 44, 53 (2011)); see also
Gomez-Sanchez v. Sessions, 892 F.3d 985, 993 (9th Cir.
2018).
A
The BIA first construed the phrase “particular social
group” in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985),
overruled in part on other grounds as stated in Matter of
Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). There,
the BIA explained that members of a particular social group
must share a “common, immutable characteristic.” Id. at 233.
An immutable characteristic is one that is either: (1) “beyond
the power of an individual to change,” or (2) “so fundamental
to [individual] identity or conscience that it ought not be
required to be changed.” Id. at 233–34.
Over time, “Acosta’s immutable characteristic test ‘led to
confusion and a lack of consistency as adjudicators struggled
with various possible social groups, some of which appeared
to be created exclusively for asylum purposes.’” Reyes,
842 F.3d at 1134 (quoting Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 231 (BIA 2014)). Thus, beginning with Matter of
C-A-, 23 I. & N. Dec. 951, 957–59 (BIA 2006), the BIA
refined the Acosta standard by stating that an applicant must
also demonstrate that his or her proposed particular social
group has “social visibility” and “particularity.” See
12 DIAZ-REYNOSO V. BARR
Henriquez-Rivas, 707 F.3d at 1084; see also Matter of A-M-
E- & J-G-U-, 24 I. & N. Dec. 69, 74–76 (BIA 2007).
The BIA later reaffirmed that these concepts—
particularity and social visibility—are distinct requirements
for establishing membership in a cognizable social group.
Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008);
Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008). In
2014, the BIA continued to refine these concepts with its
decisions in Matter of M-E-V-G-, 26 I. & N. Dec. at 227, and
Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). See
Reyes, 842 F.3d at 1135–37. The BIA explained that the
particularity inquiry recognizes that the social group must be
defined by characteristics that provide a clear benchmark for
determining who falls within the group, such that the group
possesses “discrete and . . . definable boundaries.” Matter of
M-E-V-G-, 26 I. & N. Dec. at 239. Social visibility, later
renamed “social distinction,” considers whether those with a
common immutable characteristic are “set apart, or distinct,
from other persons within the society in some significant
way.” Id. at 238. As a result of this precedent, it is now well-
established that an applicant seeking relief based on
membership in a particular social group must establish that
the group is: “(1) composed of members who share a
common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question.” Id. at 237.
In 2014, the BIA also decided Matter of A-R-C-G-, 26
I. & N. Dec. 388 (BIA 2014). There, the BIA recognized as
cognizable the proposed social group of “married women in
Guatemala who are unable to leave their relationship.” Id.
at 389. Critically, in Matter of A-R-C-G-, the Government
conceded the petitioner had “established that she suffered past
DIAZ-REYNOSO V. BARR 13
harm rising to the level of persecution and that the
persecution was on account of” her particular social group.
Id. at 390. Although the BIA cited as controlling its recent
decisions in Matter of M-E-V-G- and Matter of W-G-R-, it
relied in large part on the Government’s concession that the
group was cognizable. Id. at 392–95.
B
This appeal concerns the Attorney General’s recent
interpretation of “particular social group” in Matter of A-B-,
27 I. & N. Dec. at 317. There, the Attorney General reviewed
a BIA decision that concluded the applicant’s social
group—“El Salvadoran women who are unable to leave their
domestic relationships where they have children in
common”—was cognizable. Id. at 317, 321; see also
8 C.F.R. § 1003.1(h)(1). In its review of A-B-’s appeal, the
BIA had relied heavily on its earlier precedential decision in
Matter of A-R-C-G-, 26 I. & N. Dec. at 388, so it was
necessary for the Attorney General to review that decision as
well. Matter of A-B-, 27 I. & N. Dec. at 321. Ultimately, the
Attorney General overruled Matter of A-R-C-G-, concluding
that it impermissibly deviated from the BIA’s prior precedent.
Matter of A-B-, 27 I. & N. Dec. at 317, 333, 340; see also
8 C.F.R. § 1003.1(d)(7), (g)(1).
The Attorney General found Matter of A-R-C-G-’s
reasoning to be lacking because the BIA failed to engage in
the rigorous analysis required to properly analyze a particular
social group. Matter of A-B-, 27 I. & N. Dec. at 331. The
Attorney General concluded that Matter of A-R-C-G-
“recognized a new particular social group without correctly
applying the[] standards” for asylum, id. at 317, and “[t]o the
extent that the Board examined the legal questions,” rather
14 DIAZ-REYNOSO V. BARR
than relying on the Government’s concessions, “its analysis
lacked rigor and broke with the Board’s own precedents,” id.
at 333.
The Attorney General identified several specific errors in
the BIA’s analysis of the particular social group at issue in
Matter of A-R-C-G-. First, “[t]o be cognizable, a particular
social group must ‘exist independently’ of the harm asserted.”
Id. at 334 (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
at 236 n.11). In the Attorney General’s view, the BIA had
“avoided considering whether [the petitioner] could establish
the existence of a cognizable particular social group without
defining the group by the fact of persecution.” Id. In
particular, the Attorney General opined that the BIA never
considered that the group “was effectively defined to consist
of women in Guatemala who are victims of domestic abuse
because the inability ‘to leave’ was created by harm or
threatened harm.” Id. at 335.
Second, the Attorney General reiterated the precedent
establishing that not every immutable characteristic is
sufficiently precise to define a particular social group. Id.
The Attorney General questioned the viability of “[s]ocial
groups defined by their vulnerability to private criminal
activity” because those groups “likely lack” particularity
“given that broad swaths of society may be susceptible to
victimization.” Id. The Attorney General observed that the
BIA did not engage with this analysis in Matter of A-R-C-G-;
it merely concluded that the terms used to describe the group
had “commonly accepted definitions within Guatemalan
society.” Id.
Third, the BIA “provided no explanation for why it
believed that [the] evidence established that Guatemalan
DIAZ-REYNOSO V. BARR 15
society” perceived the proposed social group to be distinct,
and erred by accepting the Government’s concession as to
distinction. Id. at 336. The Attorney General found the
record lacking on this point and concluded there was
significant room for doubt that Guatemalan society viewed
the women comprising the social group “as members of a
distinct group in society, rather than each as a victim of a
particular abuser in highly individualized circumstances.” Id.
After overruling Matter of A-R-C-G-, the Attorney
General described the BIA’s reasoning in Matter of A-B- as
similarly cursory because it consisted of general citations to
Matter of A-R-C-G- and country condition reports. Id. at 340.
The Attorney General vacated the BIA’s decision in Matter
of A-B- and remanded the case to the BIA for further analysis
“under the standards articulated in [the Matter of A-B-]
opinion and in past Board decisions.” Id. at 340–41, 346.
Separate from its holding, Matter of A-B- included several
broad observations about asylum claims brought by “victims
of private criminal activity.” Id. at 317. For example, the
Attorney General acknowledged that “there may be
exceptional circumstances when victims of private criminal
activity could meet” the requirements for asylum, id., but also
suggested that, “[g]enerally, claims by aliens pertaining to
domestic violence or gang violence perpetrated by non-
governmental actors will not qualify for asylum,” id. at 320.
In the end, Matter of A-B- reaffirmed existing standards
for establishing membership in a particular social group, and
overruled Matter of A-R-C-G- because of its failure to comply
with the BIA’s precedents regarding those requirements.
Indeed, the Attorney General has since described Matter of
A-B- in precisely this manner. Matter of L-E-A-, 27 I. & N.
16 DIAZ-REYNOSO V. BARR
Dec. 581, 588–89 (A.G. 2019) (recognizing that in Matter of
A-B-, the Attorney General “reaffirmed” and “reiterated” the
established framework for analyzing the cognizability of
particular social groups, and “emphasized the importance of
a rigorous application of that legal standard”).
IV
On Diaz-Reynoso’s withholding claim, the BIA ruled that
her proposed social group was not cognizable in light of the
Attorney General’s decision in Matter of A-B-. On appeal,
Diaz-Reynoso contends that the Attorney General’s decision
in Matter of A-B- is not entitled to Chevron deference because
it is arbitrary and capricious. Diaz-Reynoso raises two
principal arguments: (1) Matter of A-B- runs counter to the
Immigration and Nationality Act’s (INA) scheme for bars to
withholding; and (2) in Matter of A-B-, the Attorney General
eliminated the requirement that particular social groups be
evaluated on a case-by-case basis. Neither argument is
persuasive.
A
Diaz-Reynoso first argues that Matter of A-B- is arbitrary
and capricious because it announced a new rule that amounts
to a categorical ban on withholding of removal for victims of
domestic violence, and therefore runs counter to the INA’s
scheme, which provides for only narrow and expressly
enumerated exceptions to withholding. Diaz-Reynoso’s
argument is that the Attorney General essentially added a new
exception to withholding of removal claims.
Diaz-Reynoso is correct that withholding of removal is
generally mandatory “if an alien ‘establish[es] that it is more
DIAZ-REYNOSO V. BARR 17
likely than not that [she] would be subject to persecution on
one of the specified grounds.’” INS v. Aguirre-Aguirre,
526 U.S. 415, 419 (1999) (first alteration in original) (quoting
INS v. Stevic, 467 U.S. 407, 429–30 (1984)); see also
8 U.S.C. § 1231(b)(3)(A). And the statute has specific
exceptions embodied in 8 U.S.C. § 1231(b)(3)(B). See
Aguirre-Aguirre, 526 U.S. at 419. For example, an applicant
is barred from obtaining withholding relief when he or she
has been convicted of a particularly serious crime, 8 U.S.C.
§ 1231(b)(3)(B)(ii), or when there are serious reasons to
believe that he or she committed a serious nonpolitical crime
before arriving in the United States, id. § 1231(b)(3)(B)(iii).
See also Gomez-Sanchez, 892 F.3d at 990; Go v. Holder,
640 F.3d 1047, 1052 (9th Cir. 2011).
We recognize that the Attorney General began the opinion
in Matter of A-B- by offering some general impressions about
asylum and withholding claims based on domestic violence
and other private criminal activity. See 27 I. & N. Dec.
at 320. For example, the Attorney General observed that
“[g]enerally, claims by aliens pertaining to domestic violence
. . . perpetrated by non-governmental actors will not qualify
for asylum,” and “in practice such claims are unlikely to
satisfy the statutory grounds for proving group persecution
that the government is unable or unwilling to address.” Id.
(emphasis added). But the holding of Matter of A-B- plainly
does not endorse any sort of categorical exception based on
these remarks and observations. In fact, the Attorney General
explicitly stated: “I do not decide that violence inflicted by
non-governmental actors may never serve as the basis for an
asylum or withholding application based on membership in
a particular social group.” Id. Far from endorsing a
categorical bar, the Attorney General emphasized that the
18 DIAZ-REYNOSO V. BARR
BIA must conduct the “rigorous analysis” set forth in the
BIA’s precedents. Id. at 340.3
Despite the general and descriptive observations set forth
in the opinion, the Attorney General’s prescriptive instruction
is clear: the BIA must conduct the proper particular social
group analysis on a case-by-case basis. Indeed, had the
Attorney General announced a categorical rule, there would
have been no reason to remand Matter of A-B- to the BIA for
analysis “under the standards articulated in this opinion and
in past Board decisions.” Id. In Matter of A-B-, the Attorney
General did not announce a new categorical exception for
victims of domestic violence or other private criminal
activity.
B
Diaz-Reynoso next argues that the Attorney General’s
opinion in Matter of A-B- is arbitrary and capricious because
it marks a dramatic and unexplained departure from the
BIA’s longstanding recognition that particular social group
determinations must be individualized and conducted on a
3
Like Diaz-Reynoso, the dissent focuses on the Attorney General’s
observation that claims based on domestic violence “are unlikely to satisfy
the statutory grounds for proving group persecution that the government
is unable or unwilling to address.” Id. at 320. But the Attorney General
explicitly declined to decide that violence “inflicted by non-governmental
actors may never serve as the basis” for asylum or withholding relief. Id.
Indeed, though such applicants face numerous hurdles—e.g., establishing
the existence of a particular social group, membership in that group,
persecution on account of that membership, and persecution that a
government is unwilling or unable to control—the Attorney General
recognized that “there may be exceptional circumstances when victims of
private criminal activity could meet these requirements.” Id. at 317.
DIAZ-REYNOSO V. BARR 19
case-by-case basis. This argument is based on a misreading
of Matter of A-B-.
In Matter of A-B-, the Attorney General reaffirmed the
BIA’s existing framework for analyzing the cognizability of
particular social groups, and faulted the BIA for failing to
apply it. See 27 I. & N. Dec. at 331. Under the BIA’s
established standards, social groups must “be determined on
a case-by-case basis.” Matter of Acosta, 19 I. & N. Dec.
at 233; see also, e.g., Matter of M-E-V-G-, 26 I. & N. Dec.
at 251. On this point, the Attorney General was not subtle.
Matter of A-B- reminded the BIA to “perform[] the detailed
analysis required” by the BIA’s precedents, emphasizing that
“[s]uch claims must be carefully analyzed under the standards
articulated in [Matter of A-B-] and in past Board decisions.”
27 I. & N. Dec. at 332, 340. “Neither immigration judges nor
the Board may avoid the rigorous analysis required in
determining asylum claims . . . .” Id. at 340. Matter of A-B-
did not announce a bright-line rule concerning applications
based on domestic violence; in fact, it underscored the need
for an intensive case-by-case analysis. Accordingly, we
decline to hold that the Attorney General’s decision in Matter
of A-B- was arbitrary or capricious.
V
A
Diaz-Reynoso next argues that, even if Matter of A-B- did
not establish a categorical rule barring relief for victims of
domestic violence and other private criminal activity, the BIA
misapprehended the scope of the Attorney General’s holding
in Matter of A-B-. On this point, we agree with Diaz-
Reynoso. The BIA seems to have erroneously understood
20 DIAZ-REYNOSO V. BARR
Matter of A-B- to forbid any mention of feared harm within
a proposed social group.
With almost no analysis, the BIA rejected Diaz-
Reynoso’s proposed particular social group because it
“suffer[ed] from the same circularity problem articulated by
the Attorney General in Matter of A-B-.” But Matter of A-B-
did not announce a new rule concerning circularity, or
identify a categorical “circularity problem.” It merely
reiterated the well-established principle that a particular
social group must exist independently of the harm asserted,
and that the BIA must consider whether a petitioner’s social
group is cognizable if it is defined without reference to the
fact of persecution. Matter of A-B-, 27 I. & N. Dec.
at 334–35. If a group is otherwise cognizable, Matter of A-B-
does not demand that it be devoid of any reference to an
applicant’s claimed persecution. To the contrary, Matter of
A-B- reiterated the longstanding rule that persecution may be
relevant to a group’s social distinction. The BIA’s
precedents, as well as our own, make this clear.
Matter of A-B- restated the rule that “a particular social
group must ‘exist independently’ of the harm asserted in an
application for asylum or statutory withholding of removal,”
27 I. & N. Dec. at 334 (quoting Matter of M-E-V-G-, 26 I. &
N. Dec. at 236 n.11), and “individuals in the group must share
a narrowing characteristic other than their risk of being
persecuted,” id. at 335 (quoting Rreshpja v. Gonzales,
420 F.3d 551, 556 (6th Cir. 2005)). This principle finds its
genesis in the BIA’s 2006 decision in Matter of C-A-, 23 I. &
N. Dec. at 957–61.
Matter of C-A- discussed the importance of social
distinction (then called social visibility) to the particular
DIAZ-REYNOSO V. BARR 21
social group analysis. Id. at 959–60. The BIA cited the
guidelines adopted by the United Nations High
Commissioner for Refugees (UNHCR) for establishing
membership in a particular social group, and observed that
the guidelines “confirm that ‘visibility’ is an important
element in identifying the existence of a particular social
group.” Id. at 960 (citing UNHCR Guidelines ¶¶ 2, 14).4 The
BIA explained that “a social group cannot be defined
exclusively by the fact that it is targeted for persecution,” but
said nothing to suggest that the mention of feared harm
somehow disqualifies an otherwise cognizable group. Id.
(quoting UNHCR Guidelines ¶ 2). In fact, the BIA explained
that “persecutory action toward a group may be a relevant
factor in determining the visibility of a group in a particular
society.” Id. (quoting UNHCR Guidelines ¶ 14).
Subsequent BIA decisions in 2007 and 2008 repeated this
refrain. See, e.g., Matter of S-E-G-, 24 I. & N. Dec. at 584
(observing that although a particular social group cannot be
“defined exclusively by the fact that its members have been
subjected to harm in the past . . . [,] this may be a relevant
factor in considering the group’s visibility in society” (citing
Matter of C-A-, 23 I. & N. Dec. at 960)); Matter of A-M-E- &
J-G-U-, 24 I. & N. Dec. at 74 (“Although a social group
cannot be defined exclusively by the fact that its members
have been subjected to harm, . . . this may be a relevant factor
in considering the group’s visibility in society.” (citing
Matter of C-A-, 23 I. & N. Dec. at 960)). In 2014, the BIA in
4
“UNHCR Guidelines” refers to UNHCR, Guidelines on
International Protection: “Membership of a particular social group” within
the context of Article 1A(2) of the 1951 Convention and/or its 1967
Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02
(May 7, 2002), available at https://www.unhcr.org/3d58de2da.pdf.
22 DIAZ-REYNOSO V. BARR
Matter of M-E-V-G- reaffirmed that the requirement that “the
social group must exist independently of the fact of
persecution” was “well established in [its] prior precedents
and is already a part of the social group analysis.” 26 I. &. N.
Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. &
N. Dec. at 74); see also Matter of W-G-R-, 26 I. & N. Dec.
at 215 (“Persecutory conduct aimed at a social group cannot
alone define the group, which must exist independently of the
persecution.” (citing Matter of A-M-E- & J-G-U-, 24 I. & N.
Dec. at 74)).5
The Attorney General’s opinion in Matter of A-B-
reaffirmed this line of authority for assessing the
cognizability of particular social groups, citing the BIA’s
prior articulations of the rule in cases like Matter of M-E-V-
G-, 26 I. &. N. Dec. at 236 n.11, and Matter of W-G-R-, 26 I.
& N. Dec. at 215, and the Sixth Circuit’s decision in
5
Our sister circuits’ published opinions have widely acknowledged
the rule that persecution alone cannot define the social group. See, e.g.,
Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“[W]here
a proposed group is defined only by the characteristic that it is persecuted,
it does not qualify as a ‘social group.’” (emphasis added) (citation
omitted)); Paloka v. Holder, 762 F.3d 191, 198 (2d Cir. 2014) (“[A]
particular social group is not cognizable merely because members have
been subjected to harm . . . .” (emphasis added) (quotation marks and
citations omitted)); Orellana-Monson v. Holder, 685 F.3d 511, 518–19
(5th Cir. 2012) (“[T]he risk of persecution alone does not create a
particular social group . . . .” (emphasis added) (citation omitted));
Rivera-Barrientos v. Holder, 666 F.3d 641, 650 (10th Cir. 2012) (“[A]
social group cannot be defined exclusively by the fact that its members
have been subjected to harm . . . .” (emphasis added) (citation omitted));
Jonaitiene v. Holder, 660 F.3d 267, 271 (7th Cir. 2011) (“The social group
. . . cannot be defined merely by the fact of persecution.” (emphasis
added)); Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.
2006) (“The risk of persecution alone does not create a particular social
group . . . .” (emphasis added)).
DIAZ-REYNOSO V. BARR 23
Rreshpja, which explained that the “individuals in the group
must share a narrowing characteristic other than their risk of
being persecuted.” Matter of A-B-, 27 I. & N. Dec. at 334–35
(quoting Rreshpja, 420 F.3d at 556); see also Matter of L-E-
A-, 27 I. & N. Dec. at 595 (observing that a proposed social
group must have an “‘existence independent of’ the alleged
persecutors,” and that “the risk of persecution alone can never
create a particular social group” (citation omitted)). In
Rreshpja, the court further observed that persecution may not
be “the touchstone defining the group.” 420 F.3d at 556(citation omitted). The group at issue in Rreshpja—young,
attractive Albanian women who were forced into
prostitution—lacked a “narrowing characteristic” because, if
viewed without reference to being forced into prostitution, the
proposed group would allow “virtually any young Albanian
woman who possesse[d] the subjective criterion of being
‘attractive’” to obtain asylum. Id.; see also Matter of A-B-,
27 I. & N. Dec. at 335.
B
Despite this solid and consistent line of precedent, on
appeal the Government and dissent defend the BIA’s
summary rejection of Diaz-Reynoso’s particular social group
on the grounds that it “suffers from the same circularity
problem articulated by the Attorney General in Matter of
A-B-.” They concede that the fact of persecution may be
relevant to social distinction in a particular society, but insist
that a proposed particular social group may not include
mention of feared persecution. In the Government’s and
dissent’s view, in order to exist independently from the
petitioner’s feared harm, a proposed group may not refer to
that harm at all. We disagree. The idea that the inclusion of
persecution is a sort of poison pill that dooms any group does
24 DIAZ-REYNOSO V. BARR
not withstand scrutiny. See Matter of C-A-, 23 I. & N. Dec.
at 960 (confirming that “‘visibility’ is an important element
in identifying the existence of a particular social group,” and
that “persecutory action toward a group may be a relevant
factor in determining the visibility of a group in a particular
society” (citation omitted)).
The BIA has taken pains to state that “the shared trait of
persecution does not disqualify an otherwise valid social
group.” Matter of M-E-V-G-, 26 I. & N. Dec. at 243 (citing
Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013) (en banc));
see also Paloka, 762 F.3d at 198. Though “persecutory
conduct alone cannot define the group,” Matter of M-E-V-G-,
26 I. & N. Dec. at 242 (emphasis added); see also id. at 243
(a particular social group “cannot be defined merely by the
fact of persecution” (quoting Cece, 733 F.3d at 671)),
persecution itself “may be the catalyst that causes” a society
to distinguish a group in a meaningful way and consider it
distinct, id. at 243; see also supra Part V.A.
Because BIA precedent dictates that a particular social
group cannot be defined “exclusively” by harm, the
Government and dissent insist that BIA precedent does not
permit a group to include any mention of harm. To reach this
conclusion, they ignore the word “exclusively”—along with
similar limiting language in the BIA’s decisions and those
from our sister circuits, supra Part V.A—and argue that in
order for a group to “exist independently” from harm, its
description must not refer to harm at all. But as we have
explained, BIA precedent confirms that a group that exists
independent of persecution is simply a group that shares an
immutable characteristic other than the persecution it
suffers—i.e., a group that shares a “narrowing characteristic.”
Matter of A-B-, 27 I. & N. Dec. at 335 (quoting Rreshpja,
DIAZ-REYNOSO V. BARR 25
420 F.3d at 556); Matter of W-G-R-, 26 I. & N. Dec. at 215;
see also Matter of L-E-A-, 27 I. & N. Dec. at 595.
The BIA articulated an example in Matter of M-E-V-G-
that leaves no room for doubt on this score.6 There, the BIA
posited that a proposed social group composed of former
employees of a country’s attorney general may not be valid
for asylum purposes, even though the group is discrete and
the members’ shared past experience is immutable, because
“the society may not consider these employees to be
meaningfully distinct within society in general.” Id. at 242.
However, the BIA explained, if the government began
persecuting those people, it is possible that society would
then discern that this group of individuals is distinct in some
significant way. Id. at 243. In this example, the act of
persecution by the government causes the society to
recognize the former employees as distinct, “but the
immutable characteristic of their shared past experience exists
independent of the persecution.” Id.
The UNHCR Guidelines provide a similar example
concerning left-handed people.7 Left-handed people possess
an immutable characteristic that is defined with particularity,
but the group lacks social distinction—that is, the relevant
society may not consider the characteristic to set apart the
group in a meaningful way. See UNHCR Guidelines ¶ 14. If,
however, left-handed people were subjected to persecution
6
This example is drawn from the Seventh Circuit’s decision in
Sepulveda v. Gonzales, 464 F.3d 770, 771 (7th Cir. 2006).
7
The BIA has recognized that although the views of the UNHCR are
not binding, they “are a useful interpretative aid.” Matter of M-E-V-G-,
26 I. & N. Dec. at 248.
26 DIAZ-REYNOSO V. BARR
because they were left-handed, their immutable characteristic
could become recognizable and distinct within their society.
Id. In this example, it is the attribute of being left-handed—
and not the persecutory acts—that would identify members of
this particular social group. Id. Thus, the group possesses an
underlying immutable characteristic, the fact of persecution
establishes the group’s distinction within the relevant society,
and because the group’s members can be identified by means
other than the feared persecution, it shares a narrowing
characteristic and is cognizable. 8
If we were to follow the reasoning suggested by the
Government and dissent, neither the BIA’s group of former
employees of a country’s attorney general, nor the UN High
Commissioner’s group of left-handed people, would be
cognizable if members of those groups included mention of
their feared persecution in their proposed social groups. The
particular formulation of the groups—e.g., “former
employees of the attorney general” versus “former employees
of the attorney general, who are being hunted down and
killed,” or “left-handed people” versus “left-handed people
who have been persecuted”—makes all the difference to the
group’s cognizability for the Government and dissent
because, in their view, groups that include mention of feared
harm cannot exist independently of that harm.
Though it cannot be contested that persecution may be
relevant to a group’s social distinction, the dissent argues that
the “group itself” cannot “be defined in some way by that
persecution,” and the Government echoes this view.
8
This example is borrowed from a “widely cited” decision. UNHCR
Guidelines ¶ 14 (citing Applicant A v. Minister for Immigration and Ethnic
Affairs (1997) 190 CLR 225, 264 (Austl.)).
DIAZ-REYNOSO V. BARR 27
In advancing this argument, the Government and dissent
confuse the definition of a “particular social group” with one
of its components—i.e., the group’s shared immutable
characteristic—and thereby treat every element of a proposed
social group as necessary to the group’s immutable
characteristic. This is contrary to BIA precedent, which
unequivocally establishes that a group’s persecution may be
relevant to a different component: social distinction. See
Matter of M-E-V-G-, 26 I. & N. Dec. at 242–43. Further, it
is important to recognize that the question is not whether
feared persecution can serve as an immutable characteristic;
the question is whether mention of feared persecution
disqualifies an otherwise cognizable social group.
The Government and dissent argue that by failing to treat
harm as integral to a social group’s definition—i.e., by failing
to treat it as part of the group’s shared immutable
characteristic—we advocate a rule that allows courts to
impermissibly rewrite proposed social groups. See Matter of
W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191–92 (BIA 2018)
(noting that a petitioner must delineate his or her proposed
social group before the IJ, and may not reframe the group on
appeal). We agree that courts cannot rewrite proposed social
groups, but nothing requires us to analyze them as
mechanistically as the dissent and Government urge.
As we have explained, the BIA’s precedent establishes
that we may consider the entirety of a proffered social group
to determine whether the petitioner has established all the
requirements for a cognizable group: an immutable
characteristic, particularity, and social distinction. Matter of
M-E-V-G-, 26 I. & N. Dec. at 227. We do not rewrite the
petitioner’s proposed social group by recognizing that the
mention of harm in a proposed social group may be relevant
28 DIAZ-REYNOSO V. BARR
to the group’s social distinction, nor does this prevent us from
examining whether the petitioner’s proffered group shares an
immutable characteristic other than harm. To be sure, it is
the applicant’s burden to demonstrate the existence of a
cognizable particular social group. Reyes, 842 F.3d at 1132
n.3; see also Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at
191 (noting that “it is an applicant’s burden to specifically
delineate her proposed social group”); Matter of A-T-, 25 I. &
N. Dec. 4, 10 (BIA 2009). And it is the applicant’s burden to
establish membership in that group. Reyes, 842 F.3d at 1132
n.3. But nothing in the precedential framework constrains the
petitioner to specifying a proposed group that mentions only
the proffered immutable characteristic, and no more.
The purpose of asylum and withholding is to provide
relief to people who have been persecuted in foreign lands
because of their race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); see also INS v. Cardoza-
Fonseca, 480 U.S. 421, 423–24, 427–29 (1987). The
Government and dissent do not explain why a person seeking
relief on the basis of membership in a particular social group
should be required to omit any mention of threatened
persecution. Notably, the rule they propose is not limited to
victims of domestic violence. Under the interpretation urged
by the Government and dissent, a Tutsi fleeing Rwanda
during the Rwandan Civil War would be denied relief if he or
she included in the description of the Tutsi social group that
Tutsis had been targeted in a campaign of genocide. See
Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009)
(“When the Hutus in Rwanda murdered as many Tutsis
as they could, the persecution was not on account of
‘race, religion, nationality, . . . , or political opinion,’” but
“being Tutsi . . . fits well into the ‘particular social group’
DIAZ-REYNOSO V. BARR 29
category.” (first alteration in original) (quoting 8 U.S.C.
§ 1101(a)(42)(A))). Tellingly, the dissent’s only response to
this hypothetical is that such person fleeing genocide would
not need to mention that harm because he or she could rely on
Tutsi ethnicity to establish group membership. Of course
they could, and that is precisely the point; the mere mention
of harm does not categorically disqualify an otherwise
cognizable social group.
The dissent asserts that no court has endorsed the view
that a proposed social group is not disqualified if it includes
mention of feared persecution. But the most recent decision
doing so is Grace v. Barr, — F.3d —, 2020 WL 4032652(D.C. Cir. 2020). There, the Government argued that a group
“must be separate from the harm, not consisting of the harm,
even in part,” and the D.C. Circuit rejected this argument as
“flatly inconsistent” with Matter of A-B-. Id. at *16 (internal
quotation marks omitted); see also id. (noting the
Government’s concession at oral argument that the group
“Guatemalan women unable to leave their relationships”
would not be “categorically barred,” and that “its validity
would turn on the specific factual circumstances of an
applicant’s claim”).
The case-by-case approach we describe is the very one
articulated by Matter of A-B-. There, the Attorney General
faulted the BIA’s decision in Matter of A-R-C-G- because it
“avoided considering whether [the petitioner] could establish
the existence of a cognizable particular social group without
defining the group by the fact of persecution.” Matter of
A-B-, 27 I. & N. Dec. at 334. The Attorney General
explained that members of a cognizable group “must share a
narrowing characteristic other than their risk of being
persecuted.” Id. at 335 (emphasis added) (quoting Rreshpja,
30 DIAZ-REYNOSO V. BARR
420 F.3d at 556); see also, e.g., Sarhan v. Holder, 658 F.3d
649, 655 (7th Cir. 2011) (concluding that proposed social
group of “women in Jordan who have (allegedly) flouted
repressive moral norms, and thus who face a high risk of
honor killing” was cognizable because it was not defined
solely by its risk of persecution); Rodriguez v. U.S. Att’y
Gen., 735 F.3d 1302, 1310 (11th Cir. 2013) (concluding that
proposed social group of “members of a family targeted by a
drug-trafficking organization because a family member
sought criminal justice against a member of the drug-
trafficking organization” was not cognizable because its
“defining attribute” was its persecution, and the “risk of
persecution alone does not create a particular social group”
(citation omitted)); Matter of S-E-G-, 24 I. & N. Dec. at 584,
588 (concluding that proposed social group of “young
Salvadorans who have been subject to recruitment efforts by
criminal gangs” was not cognizable because aside from being
“subjected to harm in the past (i.e., forced gang recruitment
and any violence associated with that recruitment),” the
proposed group lacked a common immutable characteristic).
If the petitioners’ mere reference to harm defeated these
proposed social groups, any further analysis of the groups
would have been unnecessary. As the D.C. Circuit
recognized in Grace, Matter of A-B- requires a “careful[]”
examination of a group to “ascertain whether it contains any
attributes that ‘exist independently of the harm asserted.’”
2020 WL 4032652, at *14–15. This is because a group
“exists independently of the harm suffered” so long as
persecution is not “what defines the contours of the group.”
See id. at *2 (citation omitted).
DIAZ-REYNOSO V. BARR 31
We recognize that, consistent with Matter of A-B-,
numerous courts have deemed proposed social groups that
referred to feared harm to be impermissibly circular. In some
circumstances, this will be the correct result. Nothing in our
analysis negates the precedent establishing that a group may
be deemed impermissibly “circular” if, after conducting the
proper case-by-case analysis, the BIA determines that the
group is “defined exclusively by the fact that its members
have been subjected to harm.” Matter of M-E-V-G-, 26 I. &
N. Dec. at 242 (quoting Matter of A-M-E- & J-G-U-, 24 I. &
N. Dec. at 74). Courts have frequently held, after proper
analysis, that groups lacking a common characteristic aside
from persecution are not cognizable. See, e.g., Amezcua-
Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1345 (11th Cir.
2019) (concluding that proposed group lacked a “‘narrowing
characteristic’ other than the[] risk of being persecuted”);
Melnik v. Sessions, 891 F.3d 278, 286 (7th Cir. 2018)
(concluding that, other than persecution, “the only common
characteristic of members of the proffered class [was] their
status as small business owners”); Rreshpja, 420 F.3d at 556(concluding that, aside from the fact of persecution, the group
included all “young, attractive Albanian women”). These
groups may also suffer from other deficiencies, such as a lack
of particularity or social distinction, but this appeal does not
require that we consider those aspects of the particular social
group analysis. Here, we clarify that the conclusion that a
proposed social group is impermissibly circular may not be
reached summarily merely because the proposed group
mentions harm.
32 DIAZ-REYNOSO V. BARR
The dissent cites to a plethora of unpublished decisions
that rejected groups similar to the one advanced here, arguing
that our decision is inconsistent with them.9 The dissent’s
reliance on these decisions reflects its mistaken premise that
the rejection of a social group in one case suggests that a
similar group may be rejected summarily in another. This
accounts for the dissent’s approval of the BIA’s one-sentence
analysis in this case. But it also contravenes binding
authority establishing that whether a particular social group
is cognizable “requires a fact-specific inquiry based on the
evidence in a particular case.” Matter of L-E-A-, 27 I. & N.
Dec. at 591.
The dissent also conflates the requirement to show nexus
with the requirements for establishing a particular social
group, and argues that if petitioners were allowed to include
mention of their claimed persecution, they would somehow
be relieved of the burden to establish a nexus between the
persecution and their membership in the group. What the
dissent overlooks is that this is only a concern if social groups
are “defined exclusively” by the harm the petitioners identify.
Matter of C-A-, 23 I. & N. Dec. at 960 (quoting UNHCR
Guidelines ¶ 14). If the only immutable characteristic is a
feared harm, the group becomes an impermissible “‘catch all’
applicable to all persons fearing persecution.” Id. (citing
UNHCR Guidelines ¶ 2); see also Castillo-Arias, 446 F.3d at
1198. That problem does not exist if a narrowing
9
Unpublished decisions are not precedent precisely because they are
“not written in a way that will be fully intelligible to those unfamiliar with
the case, and the rule of law is not announced in a way that makes it
suitable for governing future cases.” Hart v. Massanari, 266 F.3d 1155,
1178 (9th Cir. 2001). Thus, contrary to the dissent’s urging, we cannot
discern the reasoning of those decisions simply from their outcome.
DIAZ-REYNOSO V. BARR 33
characteristic allows the group to be defined without
reference to feared persecution. Matter of A-B- is clear on
this point. 27 I. & N. Dec. at 335 (noting that a group defined
by its persecution “moots the need to establish actual
persecution,” and it is “[f]or this reason” that the group
members must share a “narrowing characteristic” (emphasis
added) (citation omitted)).
C
The BIA ruled that Diaz-Reynoso’s proposed social group
was not cognizable because it assumed her inability to leave
her relationship was attributable to domestic violence, and
because it understood Matter of A-B- to say that the mention
of domestic violence disqualifies a particular social group.
The BIA’s decision consisted of a citation to Matter of A-B-
and an assertion that Diaz-Reynoso’s group suffered from the
same “circularity problem” identified in that case. Without
more, this was plainly contrary to the Attorney General’s
requirement that claims must be carefully analyzed under the
framework established by the BIA’s precedents. Matter of
A-B-, 27 I. & N. Dec. at 331–32, 339–40; see also Pirir-Boc,
750 F.3d at 1084. There are no shortcuts.
There are at least two problems with the BIA’s reasoning
in Diaz-Reynoso’s appeal. First, as explained, the BIA
misunderstood Matter of A-B-’s holding. Second, it is not
clear that the reason Diaz-Reynoso was “unable to leave” her
relationship was limited to domestic violence. Rather, the
BIA assumed that domestic violence was the only reason
34 DIAZ-REYNOSO V. BARR
Diaz-Reynoso was unable to leave her relationship. The
dissent makes the same assumption.10
Diaz-Reynoso described her particular social group as
“indigenous women in Guatemala who are unable to leave
their relationship.” The persecution Diaz-Reynoso fears is
undoubtedly the abuse perpetrated by her husband, but before
the immigration judge, she advanced evidence of economic,
societal, and cultural factors that also may have prevented her
from leaving her relationship. These included her financial
dependence on her husband, limited education, rural location,
and an ingrained Mayan cultural view that a relationship does
not end until the man so agrees.11 Contrary to the dissent’s
assertion, Diaz-Reynoso identified these factors in her brief
to the BIA.
The IJ made no findings about the cognizability of Diaz-
Reynoso’s particular social group. Instead, the IJ ruled that
Diaz-Reynoso failed to establish her membership in her
10
The dissent states that the IJ “made clear that the entire basis for
petitioner’s proposed social group was her fear of domestic violence.”
This is incorrect. The IJ made no findings about the basis for Diaz-
Reynoso’s proposed social group, and instead relied on her inability to
show membership in the group she advanced. The dissent also attributes
a finding to the BIA that it did not make—that Diaz-Reynoso’s inability
to leave “was created by harm or threatened harm.” The BIA did not
make this ruling, and we cannot supply our own reasoning in lieu of that
actually offered by the BIA. See, e.g., Recinos De Leon v. Gonzales,
400 F.3d 1185, 1189 (9th Cir. 2005).
11
There are many reasons a petitioner might be unable to leave a
relationship, including a variety of “cultural, societal, religious, economic,
or other factors.” De Pena-Paniagua v. Barr, 957 F.3d 88, 94 (1st Cir.
2020); see also Grace, 2020 WL 4032652, at *14–15; Amezcua-Preciado,
943 F.3d at 1345.
DIAZ-REYNOSO V. BARR 35
proposed social group because she did not establish she was
unable to leave her relationship. On appeal, the BIA relied on
entirely different grounds. It plucked one fact identified by
Diaz-Reynoso—that her husband physically abused her—and
ruled that her proposed social group, which it presumed to be
premised solely on domestic violence, suffered from the same
“circularity problem” identified in Matter of A-B-. By
reaching this conclusion without engaging in the analysis
underscored by the Attorney General, the BIA committed the
very same error it made in Matter of A-B-. See Matter of
A-B-, 27 I. & N. Dec. at 331, 340; see also Grace, 2020 WL
4032652, at *15 (noting that “whether a given group is
circular depends on the facts of the particular case”).
Even if Diaz-Reynoso’s social group necessarily
incorporated her husband’s physical abuse, the best indication
that this does not categorically disqualify her social group is
that the Attorney General remanded Matter of A-B- for the
BIA to conduct a proper analysis. 27 I. & N. Dec. at 340.
The group at issue in Matter of A-B- was “El Salvadoran
women who are unable to leave their domestic relationships
where they have children in common.” Id. at 321. Rather
than simply invalidating that group, the Attorney General
remanded so the group could be “carefully analyzed under the
standards articulated in this opinion and in past Board
decisions, such as M-E-V-G- and W-G-R-.” Id. at 340.
The dissent brushes aside the Attorney General’s remand
in Matter of A-B-, arguing the remand in that case was
nothing more than “standard remand language,” and urging
that Matter of A-B- reiterated a rule that any mention of harm
disqualifies a social group as impermissibly circular without
further analysis. Accepting this interpretation would require
us to ignore the Attorney General’s clear language about the
36 DIAZ-REYNOSO V. BARR
mistakes made in Matter of A-B-, including that we cannot
“avoid the rigorous analysis required” by the BIA’s
precedents, id. at 340, as well as the Attorney General’s
acknowledgment that “there may be exceptional
circumstances when victims of private criminal activity could
meet” the requirements for relief, id. at 317. See also id.
at 339 (observing that “any claim regarding the existence of
a particular social group” must be evaluated “in the context
of the evidence presented regarding the particular
circumstances in the country in question” (citation omitted)).
Because the BIA avoided the case-specific inquiry demanded
by Matter of A-B- and the BIA’s precedents, we grant Diaz-
Reynoso’s petition and remand her withholding claim.
D
Diaz-Reynoso argues that the panel should analyze her
proposed particular social group under the proper framework
in the first instance. We decline to do so.
A panel may only affirm on the grounds set forth in the
BIA’s decision. Recinos De Leon, 400 F.3d at 1189. When
the BIA’s decision “cannot be sustained upon its reasoning,
[the court] must remand to allow the agency to decide any
issues remaining in the case.” Andia v. Ashcroft, 359 F.3d
1181, 1184 (9th Cir. 2004) (per curiam); see also INS v.
Ventura, 537 U.S. 12, 16 (2002); Azanor v. Ashcroft,
364 F.3d 1013, 1021 (9th Cir. 2004).
VI
Diaz-Reynoso also sought relief pursuant to the
Convention Against Torture. CAT’s implementing
regulations require the agency to consider “all evidence
DIAZ-REYNOSO V. BARR 37
relevant to the possibility of future torture,” and we have
reversed where the agency has failed to do so. Parada v.
Sessions, 902 F.3d 901, 914–15 (9th Cir. 2018) (quoting
8 C.F.R. § 1208.16(c)(3)); see also Cole v. Holder, 659 F.3d
762, 771–72 (9th Cir. 2011); Kamalthas v. INS, 251 F.3d
1279, 1284 (9th Cir. 2001). Here, we conclude that the BIA
failed to consider all relevant evidence, so we remand Diaz-
Reynoso’s CAT claim for further consideration.
To qualify for relief under CAT, an alien must establish
it is more likely than not that he or she would be tortured if
returned to the proposed country of removal. Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (citing
8 C.F.R. § 208.16(c)(2)). Torture is any act by which severe
pain or suffering is intentionally inflicted for such purposes
as obtaining information or a confession, punishing an act
committed or one suspected of having been committed,
intimidating or coercing, or for any reason based on
discrimination of any kind. Singh v. Whitaker, 914 F.3d 654,
663 (9th Cir. 2019) (citing 8 C.F.R. § 1208.18(a)(1)).
Torture must be inflicted by, at the instigation of, or with
the consent or acquiescence of, a public official or other
person acting in an official capacity. Zheng v. Ashcroft, 332
F.3d 1186, 1188 (9th Cir. 2003) (citing 8 C.F.R.
§ 208.18(a)(1)). “Public officials acquiesce in torture if they:
‘(1) have awareness of the activity (or consciously close their
eyes to the fact it is going on); and (2) breach their legal
responsibility to intervene to prevent the activity because they
are unable or unwilling to oppose it.” Barajas-Romero v.
Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (quoting Garcia-
Milian, 755 F.3d at 1034). The public official need not have
actual knowledge of the specific incident of torture; instead,
it is sufficient that the public official is aware that torture of
38 DIAZ-REYNOSO V. BARR
the sort feared by the applicant occurs and remains willfully
blind to it. Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir.
2013); see also Ornelas-Chavez v. Gonzales, 458 F.3d 1052,
1059–60 (9th Cir. 2006).
Diaz-Reynoso, who was deemed generally credible,
testified that she told a man in her community named
Sebastian about Vasquez-Juarez abusing her. Sebastian was
“like an assistant mayor” in Yamoj, and according to Diaz-
Reynoso, he had the power to arrest Vasquez-Juarez but did
not do so. Instead, Sebastian told her that the abuse she
suffered was a personal problem. Diaz-Reynoso further
testified that she witnessed her husband bribing Sebastian.
Diaz-Reynoso also reported her abuse to a man named
Avelino, who she described as a mayor figure in her village.
Avelino told Vasquez-Juarez that what he was doing was not
right, but Vasquez-Juarez responded that Avelino could not
tell him what to do because Vasquez-Juarez “kn[e]w the
law[].” Diaz-Reynoso did not attempt to report the abuse to
anyone else, as she lacked the resources to do so. Her
mountain village was quite remote, with the nearest police
station two hours away by car.
The BIA did not discuss the evidence that Diaz-Reynoso
reported her abuse to two different authority figures in her
remote, rural community and that neither of them helped her.
The BIA’s statement that it “consider[ed] all of the evidence,”
does not suffice in this context. See Cole, 659 F.3d at 772.
Indeed, after briefing in this appeal was completed, the
Government conceded that the BIA failed to discuss
potentially dispositive evidence regarding the issue of
governmental acquiescence, specifically acknowledging that
the BIA failed to consider whether Sebastian and Avelino
DIAZ-REYNOSO V. BARR 39
qualified as public officials within the meaning of 8 C.F.R.
§ 208.18(a)(1). The Government agreed that, remand is
required under these circumstances. Accordingly, we remand
for reconsideration of Diaz-Reynoso’s CAT claim.
VII
Contrary to the dissent’s concern, there is no confusion
about the next steps for this case. On the CAT claim, the
Government now stipulates that the failure to consider the
reports Diaz-Reynoso made to people in her village requires
remand. On the withholding claim, the BIA may consider in
the first instance Diaz-Reynoso’s proffered social group
under the required framework. See Matter of W-Y-C- & H-O-
B-, 27 I. & N. Dec. at 191; see also Matter of L-E-A-, 27 I. &
N. Dec. at 591.12 In addition or in the alternative, the BIA
may choose to rule on the other issues Diaz-Reynoso
appealed and briefed to the BIA—membership in her claimed
social group, a clear probability of persecution, and
persecution the Guatemalan government is unable or
unwilling to control.
Our decision today confirms a rule that has already been
firmly established in the BIA’s decisions. Beginning with its
2006 decision in Matter of C-A-, the BIA’s precedent has
been premised on the rule that persecutory action taken
toward a group can be relevant to that group’s social visibility
(now social distinction). It is equally clear that the mere
mention of persecutory action does not defeat an otherwise
12
Because the BIA cannot engage in fact-finding, 8 C.F.R.
§ 1003.1(d)(3), the BIA may find it necessary to remand for the IJ to
decide any underlying factual issues. Matter of W-Y-C- & H-O-B-, 27 I.
& N. Dec. at 191.
40 DIAZ-REYNOSO V. BARR
cognizable social group. Matter of A-B- did not hold
otherwise, and in fact expressly reaffirmed the BIA’s
longstanding precedent.
We remand Diaz-Reynoso’s claims to the BIA for further
consideration.
PETITION FOR REVIEW GRANTED;
REMANDED.
BRESS, Circuit Judge, concurring in the judgment in part and
dissenting in part:
In Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), the
Attorney General revisited a recurring problem in the area of
immigration law: the circumstances under which victims of
domestic violence may seek asylum or withholding of
removal. The Attorney General recognized that domestic
abuse is “vile” but determined that under our immigration
laws, claims of persecution based on domestic violence will
generally “not qualify” for relief. Id. at 320, 346. The court
today purports to uphold Matter of A-B- but in fact largely
disregards it, creating an uncertain legal landscape and widely
opening the door to the types of claims Matter of A-B- said
were largely unavailable.
Under the Immigration and Nationality Act (INA), “the
Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)
DIAZ-REYNOSO V. BARR 41
(emphasis added). In Matter of A-B-, the Attorney General
reiterated the government’s longstanding approach to the
ambiguous term “particular social group”: “[t]o be
cognizable, a particular social group must exist independently
of the harm asserted in an application for asylum or statutory
withholding of removal.” 27 I. & N. Dec. at 334 (emphasis
in original) (quotations omitted). Because an applicant must
show persecution “because of” (or, for asylum, “on account
of”) membership in a “particular social group,” embedding
the harm in the definition of the group itself would be
impermissibly circular. Id. at 335, 338.
In Matter of A-B-, the Attorney General determined that
the Board of Immigration Appeals (BIA) erred in recognizing
the proposed social group “married women in Guatemala who
are unable to leave their relationship.” Id. at 319, 334. The
reason was that such a proposed group was impermissibly
circular, “effectively defined to consist of women in
Guatemala who are victims of domestic abuse because the
inability ‘to leave’ was created by harm or threatened harm.”
Id. at 335. The Attorney General in Matter of A-B- was
unequivocal: when these issues are “properly analyzed,” it is
“clear that the particular social group [is] not cognizable.” Id.
at 334.
Citing domestic violence at the hands of her common-law
husband, the petitioner in this case sought withholding of
removal based on the proposed social group “indigenous
women in Guatemala who are unable to leave their
relationship.” Recognizing that Matter of A-B- presented an
obvious obstacle to her claim, petitioner’s primary argument
on appeal is that the Attorney General’s decision was
arbitrary and capricious and unentitled to deference under
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
42 DIAZ-REYNOSO V. BARR
Inc., 467 U.S. 837 (1984). The court today rejects that
challenge. But the majority nevertheless concludes that the
BIA in this case misinterpreted Matter of A-B- in rejecting a
proposed social group that is in all relevant respects identical
to the proposed social group that the Attorney General
squarely rejected in Matter of A-B-.
This is error, with far-reaching consequences. The BIA
in this case did not misread Matter of A-B-; it just applied it.
So what did the BIA do wrong, not only in this case but
presumably in many cases in which substantially identical
proposed social groups have been rejected under the clear
reasoning of Matter of A-B-? The majority’s opinion
provides no clear answer to that question. The court’s
varying and inconsistent rationales share the common theme
that they reflect an unfortunate misunderstanding of the
INA’s requirements and the longstanding BIA precedent
interpreting them. Today’s opinion thus upholds Matter of
A-B- in name only, improperly overstepping the Attorney
General while departing from decisions of other circuits,
inviting confusion in this important area of law.
There is no doubt that domestic violence is a problem in
countries around the world and that the conduct of
petitioner’s husband is deplorable. But our court and the BIA
have long recognized that not every person who has
experienced suffering in a foreign country is entitled to
asylum or withholding of removal. In this case, the BIA
simply applied an Attorney General opinion in Matter of A-B-
that the majority otherwise holds is a valid interpretation of
the INA. That should have been the beginning and end of
this case.
DIAZ-REYNOSO V. BARR 43
I thus respectfully dissent from the majority’s
determination to grant the petition for review as to the
withholding of removal claim.1
I
To appreciate the errors in the majority opinion, it is
necessary to understand the statutory backdrop for the
Attorney General’s decision in Matter of A-B- and the
reasoning that supported that opinion.
A
An applicant is entitled to withholding of removal “if the
Attorney General decides that the alien’s life or freedom
would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The
undefined phrase “particular social group,” which also
appears in the similarly worded asylum statute, id.§§ 1101(a)(42)(A), 1158(b)(1), has proven to be a source of
considerable difficulty. Reyes v. Lynch, 842 F.3d 1125, 1134
(9th Cir. 2016); Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.
1993). We have therefore recognized that “particular social
group” is an ambiguous term and that the agency is entitled
to Chevron deference when interpreting it. Henriquez-Rivas
1
The majority also remands to the BIA for consideration of
petitioner’s claim under the Convention Against Torture (CAT). I concur
in this portion of the judgment because the government requested a
remand to the BIA on petitioner’s CAT claim. I do not, however, join in
the majority’s discussion of the merits of this claim because I find the
discussion unnecessary given the government’s remand request.
44 DIAZ-REYNOSO V. BARR
v. Holder, 707 F.3d 1081, 1083, 1087 (9th Cir. 2013) (en
banc).
Over time, the BIA has expounded on what “particular
social group” means. In Matter of Acosta, 19 I. & N. Dec.
211 (BIA 1985), and relying on the neighboring statutory
references to “race,” “religion,” “nationality,” and “political
opinion,” the BIA concluded that “particular social group”
means “a group of persons all of whom share a common,
immutable characteristic.” Id. at 233. In the BIA’s
considered view, “whatever the common characteristic that
defines the group, it must be one that the members of the
group either cannot change, or should not be required to
change because it is fundamental to their individual identities
or consciences.” Id.
Due to persisting uncertainty, and after a series of
intervening decisions, the BIA in Matter of M-E-V-G-, 26 I.
& N. Dec. 227, 237 (BIA 2014), and Matter of W-G-R-, 26 I.
& N. Dec. 208, 212–18 (BIA 2014), refined two other
requirements for a “particular social group.” In addition to
sharing an “immutable characteristic,” the group must also be
“defined with particularity” and “socially distinct within the
society in question.” Matter of M-E-V-G-, 26 I. & N. Dec.
at 237. “Particularity” means that the group “must be defined
by characteristics that provide a clear benchmark for
determining who falls within the group,” must be “discrete
and have definable boundaries,” and “must not be amorphous,
overbroad, diffuse, or subjective.” Matter of W-G-R-, 26 I. &
N. Dec. at 214. To be “socially distinct,” a group “must be
perceived as a group by society.” Matter of M-E-V-G-, 26 I.
& N. Dec. at 240. In Reyes, we held that the BIA’s
construction of the “particularity” and “social distinction”
requirements merited Chevron deference. 842 F.3d at 1133.
DIAZ-REYNOSO V. BARR 45
In Matter of M-E-V-G-, and particularly relevant here, the
BIA explained that a proposed social group must still meet
another separate requirement: “the social group must exist
independently of the fact of persecution,” a “criterion [that]
is well established in our prior precedents.” 26 I. & N. Dec.
at 236 n.11; see also Matter of W-G-R-, 26 I. & N. Dec.
at 215. The rationale for this requirement centers on the fact
that an applicant must not only prove membership in a
cognizable group, but a risk of persecution “on account of”
(or “because of”) “membership in the particular social
group.” Reyes, 842 F.3d at 1132 n.3; 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A), 1231(b)(3)(A).
This last requirement is known as the “nexus”
requirement. Reyes, 842 F.3d at 1132 n.3. The majority in
this case acknowledges the “well-established principle” that
a social group “must exist independently of the harm
asserted.” Maj. Op. 20. But the majority does little to
explain the rationale for that principle, which contributes to
the misunderstandings in today’s opinion. The logic of the
rule is important to this case.
Because a petitioner must establish a nexus between the
persecution and her membership in a proposed social group,
she cannot bake into the definition of the group the very
group-motivated persecution she must otherwise prove. That
would create a circularity problem, because “[i]f a group is
defined by the persecution of its members, then the definition
of the group moots the need to establish actual persecution.”
Matter of A-B-, 27 I. & N. Dec. at 335. Defining a group by
the harm, in other words, eliminates a petitioner’s obligation
to demonstrate persecution because of membership in the
group, effectively satisfying the nexus requirement in every
case.
46 DIAZ-REYNOSO V. BARR
This anti-circularity principle is not controversial and is
fundamental in this area of immigration law. Indeed, the
majority itself cites various cases from other circuits that have
acknowledged this rule. See, e.g., Perez-Rabanales v.
Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently
distinct social group must exist independent of the
persecution claimed to have been suffered by the alien and
must have existed before the alleged persecution began.”);
Paloka v. Holder, 762 F.3d 191, 196 (2d Cir. 2014)
(explaining that a proposed social group “must exist
independently of the persecution”) (quoting Matter of
W-G-R-, 26 I. & N. Dec. at 215); Rreshpja v. Gonzales,
420 F.3d 551, 556 (6th Cir. 2005) (“[A] social group may not
be circularly defined by the fact that it suffers persecution.”);
Maj. Op. 22 n.5, 23 (citing these cases).
Various other cases make the same point. See, e.g.,
Amezcua-Preciado v. U.S. Attorney Gen., 943 F.3d 1337,
1343 (11th Cir. 2019) (“[T]he proffered group must be
independent of, and cannot be defined by, the persecution.”);
Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019)
(“[T]he social group must exist independently of the fact of
persecution.”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
at 236 n.11) (alteration in original); Lukwago v. Ashcroft,
329 F.3d 157, 172 (3d Cir. 2003) (“We agree that under the
statute a ‘particular social group’ must exist independently of
the persecution suffered by the applicant for asylum.”).
Perhaps tellingly, of the many court of appeals cases the
majority cites on this point of law, Maj. Op. 22 n.5, all of
them denied petitions for review with the exception of one,
and that case only remanded to the BIA in light of intervening
precedent.
DIAZ-REYNOSO V. BARR 47
B
In Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014),
the BIA recognized as a particular social group “married
women in Guatemala who are unable to leave their
relationship.” Id. at 392. In treating this proposed social
group as cognizable, the BIA relied primarily on the
government’s concessions “that a particular social group
exist[ed]” and that the proposed group was “defined with
particularity.” Id. at 393–94. Based on A-R-C-G-, the BIA
then began to grant asylum and withholding of removal to
victims of domestic violence. That is what ultimately led to
the Attorney General’s intervention in Matter of A-B-, 27 I.
& N. Dec. 316 (A.G. 2018), the opinion most directly before
us.
The petitioner in Matter of A-B- claimed persecution in
the form of domestic violence based on her membership in
the claimed social group “El Salvadoran women who are
unable to leave their domestic relationships where they have
children in common.” Id. at 321. The BIA held that this
proposed group was cognizable under Matter of A-R-C-G-
and ordered that the petitioner receive asylum. Id. The
Attorney General then intervened in Matter of A-B-, see
8 U.S.C. §§ 1103(a)(1), (g)(2); 8 C.F.R. § 1003.1(h)(1), and
“overrule[d]” Matter of A-R-C-G-. See Matter of A-B-, 27
I. & N. Dec. at 317, 319, 340, 346. In the Attorney General’s
considered view, Matter of A-R-C-G- improperly elevated the
government’s concessions into binding precedent,
“recogniz[ing] a new particular social group without correctly
applying” the legal standards discussed above. Id. at 317; see
also id. at 333.
48 DIAZ-REYNOSO V. BARR
Matter of A-R-C-G- was “wrongly decided,” the Attorney
General explained, because “[t]o be cognizable, a particular
social group must ‘exist independently’ of the harm asserted
in an application for asylum or statutory withholding of
removal.” Id. at 333–34 (emphasis in original) (citing, e.g.,
Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter
of W-G-R-, 26 I. & N. Dec. at 215; Perez-Rabanales,
881 F.3d at 67). That longstanding principle was fatal to the
proposed social group in Matter of A-R-C-G-. As the
Attorney General explained, the BIA in “A-R-C-G- never
considered that ‘married women in Guatemala who are
unable to leave their relationship’ was effectively defined to
consist of women in Guatemala who are victims of domestic
abuse because the inability ‘to leave’ was created by harm or
threatened harm.” Id. at 335. The proposed social group in
Matter of A-R-C-G- thus violated the anti-circularity
principle. Id. at 334–35.
Although the Attorney General in Matter of A-B- did “not
decide that violence inflicted by non-governmental actors
may never serve as the basis for an asylum or withholding
application,” he explained that such claims based on domestic
violence “are unlikely to satisfy the statutory grounds for
proving group persecution.” Id. at 320.
II
In this case, petitioner claims her husband acted violently
toward her because of her membership in the claimed social
group “indigenous women in Guatemala who are unable to
leave their relationship.” The BIA held that petitioner’s
proposed group was not cognizable because it “suffers from
the same circularity problem articulated by the Attorney
General in Matter of A-B-.” In Part IV of its opinion, the
DIAZ-REYNOSO V. BARR 49
majority correctly rejects petitioner’s arguments that Matter
of A-B- is arbitrary and capricious and undeserving of
Chevron deference. Maj. Op. 16–19. But the majority
nonetheless concludes in Part V that the BIA misinterpreted
Matter of A-B-, requiring a remand to the agency.
Part V is where the problem lies. The petitioner’s
proposed social group of “indigenous women in Guatemala
who are unable to leave their relationship” is virtually
identical to the proposed social group in Matter of A-R-C-G-,
which was “married women in Guatemala who are unable to
leave their relationship.” The Attorney General in Matter of
A-B- clearly determined that the latter group was “not
cognizable.” 27 I. & N. Dec. at 334. Yet when the BIA
then applied Matter of A-B- to petitioner’s materially
indistinguishable proposed group, our court now tells the BIA
it erred in not following Matter of A-B-.
That holding is quite mistaken, turning on a misreading of
Matter of A-B- and a related misunderstanding of the core
principles of immigration law on which Matter of A-B- is
premised. While today’s opinion might initially appear to
reject a challenge to Matter of A-B- and narrowly remand on
case-specific grounds, in reality that is not so. Instead, the
court’s opinion improperly recasts Matter of A-B-, with
widespread consequences for the many cases that today’s
decision is sure to affect. The result is also that the federal
immigration law that applies in this circuit will differ
considerably from the law applied elsewhere in this country.
A central problem with today’s opinion—and one of the
reasons I fear it will engender confusion—is that the majority
offers what I see as varying and inconsistent rationales for
why the BIA erred. Each of those grounds for decision is
50 DIAZ-REYNOSO V. BARR
incorrect and each reflects a noted departure from governing
law.
A
1
In articulating why a remand is required, the majority first
explains that “[t]he BIA seems to have erroneously
understood Matter of A-B- to forbid any mention of feared
harm within a proposed social group.” Maj. Op. 19–20. The
majority consequently “disagree[s]” that “in order to exist
independently from the petitioner’s feared harm, a proposed
group may not refer to that harm at all.” Id. at 23. This
reflects legal error and departs from the decisions of our sister
circuits. See, e.g., Gonzales-Veliz, 938 F.3d at 232 (holding
that a proposed group of “Honduran women unable to leave
their relationship” was not cognizable because it was “defined
by, and d[id] not exist independently of, the harm—i.e., the
inability to leave”).
Simply stated, a proposed group that incorporates harm
within its definition is not a group that “exist[s] independently
of the harm asserted in an application for asylum or statutory
withholding of removal.” Matter of A-B-, 27 I. & N. Dec.
at 334 (emphasis added) (quotations omitted). Recall that the
overall framework requires an asylum or withholding
applicant to prove three things: (1) the existence of a
cognizable particular social group; (2) membership in that
group; and (3) “a risk of persecution on account of” (or
“because of”) “his membership.” Reyes, 842 F.3d at 1132 n.3
(emphasis added).
DIAZ-REYNOSO V. BARR 51
Now imagine a proposed social group that is transparently
based in part on the harm, such as “Guatemalan men who are
harmed by gangs.” Saying that a petitioner was harmed by
gangs based on his membership in the group “Guatemalan
men who are harmed by gangs” would collapse the inquiries.
And it would create the very circularity problem that Matter
of A-B- sought to avoid in the domestic violence context,
allowing nexus to be proven by the group definition itself.
See Matter of A-B-, 27 I. & N. Dec. at 334 (citing, e.g.,
Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; Matter
of W-G-R-, 26 I. & N. Dec. at 215). The majority thus errs in
claiming that I “do not explain why a person seeking relief on
the basis of membership in a particular social group should be
required to omit any mention of threatened persecution.”
Maj. Op. 28. The reason, as I have explained, is the anti-
circularity principle.
Contrary to the suggestion in the majority opinion, Matter
of A-B- did not endorse the concept of a particular social
group that references harm in its definition. Maj. Op. 23–25.
Matter of A-B- in fact confirms that such a group is
impermissible. Matter of A-B- expressly rejected the
proposed social group in Matter of A-R-C-G-, which was
“married women in Guatemala who are unable to leave their
relationship.” Matter of A-B-, 27 I. & N. Dec. at 319. This
proposed group obviously does contain some immutable
characteristics not defined by the harm, namely, “married
women in Guatemala.” But the Attorney General concluded
the proposed social group still incorporated a reference to
harm, because a claimed “inability to leave” was “effectively
defined to consist of women in Guatemala who are victims of
domestic abuse.” Id. at 335. For that reason, the group
violated the anti-circularity principle and was “not
cognizable.” Id. at 334.
52 DIAZ-REYNOSO V. BARR
If referring to harm within the group definition were
allowed, Matter of A-B- on this central point should have
come out the other way. It is thus true, as the majority
explains, that Matter of A-B- did not “identify a categorical
‘circularity problem.’” Maj. Op. 20 (emphasis added). But
that is only because the anti-circularity rule had long existed
in the law. Matter of A-B- thus did not “identify” and
announce this rule, but it certainly applied it. Whether the
anti-circularity rule applies is determined on a case-by-case
basis by examining the proposed social group that an
applicant brings forward. See Matter of A-B-, 27 I. & N. Dec.
at 340; Matter of M-E-V-G-, 26 I. & N. Dec. at 251. But
when the rule does apply, it is, indeed, a categorical one.
Matter of A-B-’s reliance on Rreshpja v. Gonzales,
420 F.3d 551 (6th Cir. 2005), only confirms this point. The
Attorney General in Matter of A-B- specifically cited
Rreshpja for the rule that “[t]he individuals in the group must
share a narrowing characteristic other than their risk of being
persecuted.” 27 I. & N. Dec. at 335 (alteration in original)
(quoting Rreshpja, 420 F.3d at 556). In Rreshpja, the court
understood the proposed social group to be “young (or those
who appear to be young), attractive Albanian women who are
forced into prostitution.” 420 F.3d at 555. The Sixth Circuit
rejected this group because “a social group may not be
circularly defined by the fact that it suffers persecution.” Id.
at 556 (emphasis added).
The proposed particular social group in Rreshpja was not
completely defined by the harm, but the court rejected it
because it was still partially defined by the harm. Id. The
majority therefore gets Rreshpja backwards. Maj. Op. 23.
The Attorney General in Matter of A-B- was not purporting
to allow a group defined in part by the harm by relying on a
DIAZ-REYNOSO V. BARR 53
Sixth Circuit opinion that rejected a proposed social group
that was itself partially defined by the harm, and that
therefore suffered from the same problem as the proposed
group in this case.
Notably, both petitioner and her amicus agree with my
interpretation of Matter of A-B-. Petitioner herself regards
the “holding” of Matter of A-B- to be that a particular social
group “cannot be defined, even in part, by the fact of
persecution.” (Emphasis added). And amicus Center for
Gender & Refugee Studies likewise agrees that under Matter
of A-B-, the circularity rule “require[s] a group to be defined
completely independently of the harm.” (Emphasis in
original). Petitioner and the amicus both regard this as a new
rule, but it is not. It is the same rule that has always applied:
“[t]o be cognizable, a particular social group must exist
independently of the harm asserted.” Matter of A-B-, 27
I. & N. Dec. at 334 (emphasis in original) (quotations
omitted); see also Matter of M-E-V-G-, 26 I. & N. Dec. at 236
n.11.
Unlike the majority, my interpretation of Matter of A-B-
is also aligned with that of other circuits. The majority
opinion “recognize[s] that, consistent with Matter of A-B-,
numerous courts have deemed proposed social groups that
referred to feared harm to be impermissibly circular.” Maj.
Op. 31. The concession is well-taken. But it is, if anything,
a considerable understatement, because other circuits have
routinely denied petitions for review presenting materially
identical proposed social groups to the one at issue here, that
also referenced harm in the group definition itself.
In Gonzales-Veliz v. Barr, 938 F.3d 219 (5th Cir. 2019),
the Fifth Circuit denied a petition for review seeking asylum
54 DIAZ-REYNOSO V. BARR
and withholding of removal based on the proposed social
group “Honduran women unable to leave their relationship.”
Id. at 223. The Fifth Circuit explained that “under A-B-’s
analysis, [this] group cannot constitute a particular social
group” because “[t]he group is defined by, and does not exist
independently of, the harm—i.e., the inability to leave.” Id.
at 232. In other words, the Fifth Circuit held, this group was
not cognizable because it was “impermissibly defined in a
circular manner.” Id.
Several months later, the Eleventh Circuit issued a similar
decision in Amezcua-Preciado v. U.S. Attorney General, 943
F.3d 1337 (11th Cir. 2019) (per curiam). There, the Eleventh
Circuit denied a petition for review seeking relief based on
the proposed social group “women in Mexico who are unable
to leave their domestic relationships.” Id. at 1339. The
Eleventh Circuit recognized that the petitioner’s “proposed
social group suffers from the kinds of problems the Attorney
General identified in A-B- as likely to render most groups of
victims of private violence not cognizable.” Id. at 1344. And
the Eleventh Circuit made clear that “to the extent [the
petitioner’s] proposed group of Mexican women . . . are
unable to leave their domestic relationships because they fear
physical or psychological abuse by their spouse or domestic
partner, this group is defined by the underlying harm
asserted.” Id. at 1345. In reading Matter of A-B- to allow
proposed social groups that include feared harm in the group
definition, the majority departs from both the reasoning and
the results of the Fifth and Eleventh Circuit decisions.
Indeed, the majority’s decision is inconsistent with many
cases from other circuits that have denied petitions for review
that advanced proposed social groups materially identical to
the one advanced here. See, e.g., Perez-Agustin v. U.S.
DIAZ-REYNOSO V. BARR 55
Attorney Gen., 798 F. App’x 608, 609 (11th Cir. 2020) (per
curiam) (rejecting as impermissibly circular proposed social
group of “indigenous women from Guatemala, who are native
Mam speakers, who are victim[s] of sexual violence”)
(alteration in original); Martinez Casco v. U.S. Attorney Gen.,
800 F. App’x 835, 838 (11th Cir. 2020) (per curiam)
(rejecting as impermissibly circular proposed social group of
“female domestic violence victims who are unable to leave”);
Serrano-de Portillo v. Barr, 792 F. App’x 341, 342–43 (5th
Cir. 2020) (per curiam) (rejecting as impermissibly circular
proposed social group of “El Salvadoran women targeted by
gang members to be gang girlfriends”); Garcia-Ventura v.
Barr, 788 F. App’x 969, 970–71 (5th Cir. 2019) (per curiam)
(rejecting as impermissibly circular proposed social groups of
“victims of domestic violence at the hands of their domestic
partner and unable to leave their domestic partner” and
“victims of domestic violence who are viewed as property by
virtue of their positions within a domestic relationship”);
Gonzalez-De Moreira v. U.S. Attorney Gen., 787 F. App’x
659, 662 (11th Cir. 2019) (per curiam) (rejecting as
impermissibly circular proposed social groups of “Salvadoran
women who are victims of violence” and “Salvadoran
children who are victims of violence”); Reyes v. Sessions,
750 F. App’x 656, 659 (10th Cir. 2018) (rejecting as
impermissibly circular proposed social group of “female
victims of domestic violence”). Indeed, our court in an
unpublished decision rejected as impermissibly circular a
proposed group of “women who have been harassed and
threatened by men and whose complaints to police have
failed to result in protection,” because the group was “defined
by the claimed persecutory conduct” and thus did “not exist
56 DIAZ-REYNOSO V. BARR
independently from the claimed persecution.” Calderon-
Espejo v. Barr, 771 F. App’x 371, 372–73 (9th Cir. 2019).2
The majority acknowledges this “plethora of unpublished
decisions that rejected groups similar to the one advanced
here,” but claims it “cannot discern the reasoning of those
decisions simply from their outcome.” Maj. Op. 32 & n.9.
Setting aside that the Fifth and Eleventh Circuits have
rejected proposed social groups materially identical to the one
here in published opinions, see Amezcua-Preciado, 943 F.3d
at 1345; Gonzales-Veliz, 938 F.3d at 232, the numerous
unpublished decisions reaching the same result easily reveal
their straightforward reasoning: the proposed group in each
case failed because it included a reference to harm, thus
presenting the circularity issue.
The groups in these cases were defined in part by
immutable characteristics that were separate and apart from
2
Even before Matter of A-B-, courts also routinely rejected proposed
social groups as circular if they referred to alleged harm or persecution.
See e.g., Soto-Ambrocio v. Sessions, 724 F. App’x 456, 458 (6th Cir.
2018) (per curiam) (rejecting as impermissibly circular proposed social
group of “young women from Guatemala subject to abuse from families”);
Moreno v. Lynch, 628 F. App’x 862, 865 (4th Cir. 2015) (rejecting as
impermissibly circular proposed social group of “Hondurans who have
been targeted by the police and their criminal associates to engage in drug
trafficking”); Rreshpja, 420 F.3d at 555–56 (rejecting as impermissibly
circular proposed social group of “young (or those who appear to be
young), attractive Albanian women who are forced into prostitution”).
The majority is thus not correct that the government and this dissent (and
by implication, the other circuits) “confuse the definition of a ‘particular
social group’ with one of its components—i.e., the group’s shared
immutable characteristic.” Maj. Op. 27. The requirement that a proposed
social group exist independent of the harm is its own separate
requirement. Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.
DIAZ-REYNOSO V. BARR 57
the harm, such as women from a certain country. But they
were also defined in part by an “inability to leave” or some
similar formulation that was regarded as a reference to harm.
Unlike today’s opinion, however, none of these cases treated
the BIA decisions on review as having “erroneously
understood Matter of A-B- to forbid any mention of feared
harm within a proposed social group.” Maj. Op. 19–20.
Instead, they treated the “mention” of that harm as a
dispositive violation of the longstanding anti-circularity
principle.3
2
The majority gives two primary reasons for departing
from the case law of other circuits and allowing proposed
3
The majority is correct that the D.C. Circuit recently stated (in a case
challenging a policy memorandum not at issue here) that the notion that
“the group must be ‘separate’ from the harm, not consisting of the harm,
even in part,” is “flatly inconsistent” with Matter of A-B-. Grace v. Barr,
— F.3d —, 2020 WL 4032652, at *16 (D.C. Cir. 2020). However, the
D.C. Circuit premised this point on an asserted government concession as
to whether the phrase “inability to leave” could be a reference to
something other than harm, id., which is a different issue (the majority
addresses this issue in its Part V.C and I address it in Part II.C below). In
Grace, the D.C. Circuit held that the policy memorandum at issue there
correctly stated the “circularity rule” as set forth in Matter of A-B-. Id.The court described the “circularity rule” as requiring that “social groups
must ‘exist independently’ of the harm claimed by the applicant, that is,
the applicant must be able to establish the group’s existence ‘without
defining [it] by the fact of persecution.’” Id. at *14 (quoting Matter of
A-B-, 27 I. & N. Dec. at 334) (alteration in original). To the extent Grace
“endorsed the view that a proposed social group is not disqualified if it
includes mention of feared persecution” as the majority claims, Maj. Op.
29, the D.C. Circuit offered no explanation for this point, which is both
incorrect and against the weight of authority applying Matter of A-B-, as
detailed in this dissent.
58 DIAZ-REYNOSO V. BARR
social groups that include a reference to harm. Both
rationales fail as a matter of law.
First, the majority holds that a proposed social group
definition can include a reference to harm because
“persecution may be relevant to a group’s social distinction.”
Maj. Op. 20; see also id. at 23–24. This reflects a
misunderstanding of BIA precedent and the conflation of two
independent requirements for a “particular social group” to be
cognizable: (1) that the group exist independent of the harm
and (2) that it be socially distinct in the relevant society.
These are different requirements. Indeed, in explaining the
“social distinction” element, the BIA in Matter of M-E-V-G-
pointed out that while “the social group must exist
independently of the fact of persecution,” this is a separate
criterion from “social distinction.” Matter of M-E-V-G-,
26 I. & N. Dec. at 236 n.11.
The majority dismisses this as “mechanistic[],” Maj. Op.
27, but these separate requirements perform meaningful
analytical work. It is certainly true that persecution can be
used to demonstrate that a proposed group is “socially
distinct.” As the BIA has explained, “[t]he act of persecution
by the government may be the catalyst that causes the society
to distinguish [a proposed social group] in a meaningful way
and consider [it] a distinct group.” Matter of M-E-V-G-, 26 I.
& N. Dec. at 243. But this does not mean that the definition
of the group itself can include the harm. Why? Because the
entire reason the group “must exist independently of the harm
asserted,” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis
in original) (quotations omitted), is to avoid the circularity
problem that would otherwise allow petitioners automatically
to fulfill the separate nexus requirement by injecting the harm
DIAZ-REYNOSO V. BARR 59
itself into the very definition of the group whose membership
is supposedly causing the persecution.
The majority’s hypotheticals only prove this point. Maj.
Op. 25–26. The first one, used in Matter of M-E-V-G-,
consists of the proposed particular social group “former
employees of a country’s attorney general.” Matter of
M-E-V-G-, 26 I. & N. Dec. at 242. The second hypothetical
is found in United Nations High Commissioner for Refugees
(UNHCR) Guidelines and involves the proposed social group
of left-handed men. UNHCR, Guidelines on International
Protection, ¶ 14, U.N. Doc. HCR/GIP/02/02 (May 7, 2002)
[hereinafter UNHCR Guidelines]. Critically, unlike the
proposed social group in this case, neither hypothetical
involves a proposed group defined in any way by the harm
itself.
But though the fact of persecution does not define the
group, these hypotheticals show that the harm may
permissibly be used to show the group is socially distinct in
the relevant society. Take “former employees of a country’s
attorney general” as an example. As the BIA explained,
“[a]lthough such a shared past experience is immutable and
the group is sufficiently discrete, the employees may not
consider themselves a separate group within the society.”
Matter of M-E-V-G-, 26 I. & N. Dec. at 242. But if “the
government begins persecuting them,” “[u]pon their
mistreatment, it is possible that these people would
experience a sense of ‘group,’ and society would discern that
this group of individuals, who share a common immutable
characteristic, is distinct in some significant way.” Id.
at 242–43.
60 DIAZ-REYNOSO V. BARR
That is consistent with the anti-circularity principle,
because while “[t]he act of persecution by the government
may be the catalyst that causes the society to distinguish the
former employees in a meaningful way and consider them a
distinct group,” “the immutable characteristic of their shared
past experience exists independent of the persecution.” Id.
at 243 (emphasis added). The UNHCR made the same point
about its “[l]eft-handed men” hypothetical: the group would
still be defined by “the attribute of being left-handed and not
the persecutory acts.” UNHCR Guidelines ¶ 14 (emphasis
added).
The majority’s two hypotheticals thus demonstrate the
very analytical distinction the majority sweeps aside. Just
because persecution may show that a group is socially distinct
does not mean the group itself can be defined in some way by
that persecution. The majority apparently suggests it would
create no issue to define the hypothetical group of “former
employees of the attorney general” as “former employees of
the attorney general, who are being hunted down and killed.”
Maj. Op. 26. But that is exactly the type of group courts have
routinely rejected under the anti-circularity principle. See
ante at 53–56 & n.2. The majority is thus incorrect in
suggesting that I overlook that BIA precedent “unequivocally
establishes that a group’s persecution may be relevant to” the
social distinction requirement. Maj. Op. 27. Persecution is
relevant to the requirement of social distinction, as I have
explained. But that does not mean groups can include in their
definitions a reference to harm, contrary to the separate
DIAZ-REYNOSO V. BARR 61
requirement that the group exist independent of the harm.
See, e.g., Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11.4
Second, and relying on snippets of language in BIA
decisions, the majority holds that a particular social group can
include harm in its definition because “[t]he BIA [has]
explained that a ‘social group cannot be defined exclusively
by the fact that it is targeted for persecution.’” Maj. Op. 21
(quoting Matter of C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006)
(emphasis in original)). The majority quotes other BIA
decisions that use this “exclusively” language, but these
decisions in turn rely on the BIA’s earlier opinion in Matter
of C-A-. See id. at 21–22, 31.
The majority’s reliance on “exclusively” is not correct.
That a proposed social group cannot be defined “exclusively”
by the harm does not somehow mean it could then be based
in part on the harm. If that were true, Matter of A-B-—which
rejected a proposed social group that was not based
exclusively on the harm—would have come out the other way
on this critical issue. And if the only limit was that a group
cannot be based “exclusively” on the harm, there would have
4
The majority’s hypothetical of Tutsis fleeing Rwanda is inapt. Maj.
Op. 28–29. There, the proposed social group would be defined based on
ethnicity, not harm. See Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th
Cir. 2009). A person who experienced genocide based on ethnicity would
have no reason to define his proposed social group by including the harm
in the group definition itself. Petitioner here, by contrast, had
understandable strategic reasons to try that approach here, as I explain
below. The majority is correct that the anti-circularity rule is not specific
to the domestic violence context. But that makes the majority’s departure
from the rule more problematic, not less. Under the majority’s approach,
the many cases that have rejected proposed social groups that referenced
harm were all wrongly decided on this point.
62 DIAZ-REYNOSO V. BARR
been no reason for the BIA repeatedly to articulate the
principle that the group “must exist independently of the harm
asserted.” Matter of A-B-, 27 I. & N. Dec. at 334 (emphasis
altered) (quotations omitted); Matter of M-E-V-G-, 26 I. & N.
Dec. at 236 n.11. Indeed, cases the majority cites that use the
“exclusively” formulation also state the rule that the group
must exist independent of the harm. See Maj. Op. 22 n.5
(citing Perez-Rabanales, 881 F.3d at 67; Paloka, 762 F.3d
at 196).
I suppose it is possible to imagine a proposed social group
that is defined “exclusively” by harm (e.g., “victims of
physical assaults”). But most proposed social groups that
have the circularity problem are defined in part by the harm
and in part by something else, such as gender or nationality.
There is nothing in the BIA’s precedent suggesting it did not
intend those proposed social groups to come within the anti-
circularity principle, whose logic clearly extends to them. To
the contrary, the BIA’s formulation—“must exist
independently”—ensures that groups defined in part by the
harm are not allowed.
The origins of the “exclusively” phrasing also
demonstrate it was not intended to operate in the way the
majority uses it, i.e., implicitly to allow groups defined in part
by the harm. As noted, this “exclusively” language can be
traced to the BIA’s decision in Matter of C-A-. But there, the
BIA stated that “the [UNHCR] Guidelines state that ‘a social
group cannot be defined exclusively by the fact that it is
targeted for persecution,’” although “persecutory action
toward a group may be a relevant factor in determining the
visibility of a group in a particular society.” Matter of C-A-,
23 I. & N. Dec. at 960 (emphasis in original) (quoting
UNHCR Guidelines ¶¶ 2, 14).
DIAZ-REYNOSO V. BARR 63
The quoted language drives home the distinction that the
majority elides, which is that persecution can be relevant for
social distinction (previously known as social visibility), but
not for the definition of the group itself. The quoted language
also shows that the majority is misusing the “exclusively”
phrasing on its own terms. The BIA in Matter of C-A- used
this language when quoting the UNHCR Guidelines, which
I discussed earlier. Matter of C-A-, 23 I. & N. Dec. at 960.
And these Guidelines likewise make clear that a group cannot
be defined in part by the harm.
In the Guidelines, the UNHCR used the left-handed men
hypothetical to show that persecution can be relevant to what
we now call social distinction. UNHCR Guidelines ¶ 14; see
Matter of M-E-V-G-, 26 I. & N. Dec. at 228. But the
UNHCR made clear that in that circumstance, “it would be
the attribute of being left-handed and not the persecutory acts
that would identify them as a particular social group.”
UNHCR Guidelines ¶ 14. That is a rejection of the majority’s
view that a group can be defined in part by the harm.
The majority opinion is thus incorrect in claiming that I
“ignore the word ‘exclusively’—along with similar limiting
language in the BIA’s decisions and those from our sister
circuits.” Maj. Op. 24. Instead, as the extensive discussion
above confirms, it is the majority that is incorrectly using the
“exclusively” formulation in service of authorizing groups
that refer to harm, contrary to other circuits that have
addressed substantially identical proposed social groups.
B
Equally mistaken is the majority’s suggestion that the
BIA erred in this case because it is possible to bracket out a
64 DIAZ-REYNOSO V. BARR
reference to harm in the definition of a proposed social group
in considering whether petitioner has put forward an
“otherwise cognizable” group. Maj. Op. 21–22, 27, 39–40;
see also id. at 20 (“If a group is otherwise cognizable, Matter
of A-B- does not demand that it be devoid of any reference to
an applicant’s claimed persecution.”) (emphasis added). The
majority’s analysis suggests that we may consider some
elements of a proffered social group as relevant to the
immutable characteristic inquiry, consider other elements for
their relevance to social distinction, and do so without
impermissibly rewriting the petitioner’s proposed social
group. See Maj. Op. 27–28.
That is not correct. I am aware of no case, and the
majority cites none, that would allow a court (or the BIA) to
take a petitioner’s proposed social group, break it down into
constituent elements, and then assign those elements out to
the distinct requirements that a petitioner must meet to
demonstrate a cognizable social group. In my respectful
view, that is not how this area of law works.
BIA precedent is clear that the agency must evaluate the
proposed social group exactly as the petitioner has defined it.
In precedent the majority cites, Maj. Op. 27, 28, 39 n.12, the
BIA has held that “[w]here an applicant raises membership in
a particular social group as the enumerated ground that is the
basis of her claim, she has the burden to clearly indicate ‘the
exact delineation of any particular social group(s) to which
she claims to belong.’” Matter of W-Y-C- & H-O-B-, 27 I. &
N. Dec. 189, 191 (BIA 2018) (quoting Matter of A-T-, 25 I. &
N. Dec. 4, 10 (BIA 2009)). The Immigration Judge (IJ) must
then analyze “the specific group” identified, and “[i]f an
applicant is not clear as to the exact delineation of the
proposed social group, the Immigration Judge should seek
DIAZ-REYNOSO V. BARR 65
clarification.” Id. On appeal, the BIA may only consider the
specific proposed social group that the petitioner presented to
the IJ. Id. at 191–92.
These various requirements are not empty formalities.
Instead, they follow from the fact that a petitioner bears the
burden of proof in demonstrating “the existence of a
cognizable particular social group” and persecution because
of her membership in that group. Reyes, 842 F.3d at 1132 n.3
(quoting Matter of W-G-R-, 26 I. & N. Dec. at 223); see also
Cantarero-Lagos v. Barr, 924 F.3d 145, 151 (5th Cir. 2019)
(“Requiring asylum and withholding applicants to delineate
their [particular social group] to an IJ is simply a logical
extension of this burden of proof.”).
Requiring the petitioner to delineate her proposed social
groups has important practical benefits as well. It ensures
that appropriate fact-finding is conducted at the IJ level.
Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. at 191;
Cantarero-Lagos, 924 F.3d at 152. And it creates a “rational
administrative process” that allows the government to
respond to a petitioner’s proposed social group, while
preventing repeated remands to the IJ. Cantarero-Lagos,
924 F.3d at 152.
Consistent with this scheme, we have repeatedly
determined that we lack jurisdiction to consider a new or
different proposed social group that the petitioner did not
present to the agency. See, e.g., Lozano Fuerte v. Barr,
804 F. App’x 742, 742–43 (9th Cir. 2020); Nesta-Najar v.
Barr, 804 F. App’x 604, 606 (9th Cir. 2020); Perez Perez v.
Barr, 804 F. App’x 597, 598 (9th Cir. 2020); Vasquez-Leon
v. Barr, 804 F. App’x 612, 613 (9th Cir. 2020); Romero-
Castro v. Barr, 790 F. App’x 64, 65 (9th Cir. 2020); Lopez-
66 DIAZ-REYNOSO V. BARR
Velasquez v. Sessions, 742 F. App’x 195, 196 n.1 (9th Cir.
2018).
The majority agrees that “courts cannot rewrite proposed
social groups.” Maj. Op. 27. But the majority’s suggestion
that we or the BIA can splice out elements of a proposed
group and consider them for some, but not other purposes, is
inconsistent with established precedent and practice. The
same can be said of petitioner’s analogous suggestion that we
should “look[] beyond the language used to describe [her]
proposed social group.” (Emphasis added). Petitioners can
propose multiple and alternative particular social groups to
the agency; many petitioners do so. E.g., Honcharov v. Barr,
924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam). But under
the authority set forth above, we cannot take a petitioner’s
proposed group and alter it. Indeed, the very idea that there
are severable elements in the proposed social group is
misplaced. There are no such elements; there is only the
proposed group.
By the same token, if we subtract one element (here
“inability to leave”), we likewise create a different group than
the one the petitioner articulated. Tellingly, in none of the
cases cited above denying petitions with similar proposed
groups to the one here did the courts proceed to consider a
version of the proposed group minus the impermissibly
circular reference to the harm. Nor did those courts remand
to the BIA with instructions to do this. The majority opinion
thus fails to recognize that the definition of the proposed
group—as the petitioner has defined it—is central to how this
entire scheme works.
The majority errs in suggesting it can refashion
petitioner’s proposed group because “[t]he BIA has taken
DIAZ-REYNOSO V. BARR 67
pains to state that ‘the shared trait of persecution does not
disqualify an otherwise valid social group.’” Maj. Op. 24
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 243). The
BIA in Matter of M-E-V-G- was not implying that if a group
is defined to include the harm, that the BIA (or a court) could
carve out the reference to harm to produce an “otherwise
valid social group.” Instead, the BIA said that if the
petitioner had come forward with an “otherwise valid social
group,” using the fact of persecution to demonstrate the social
distinction requirement would not invalidate the group.
Matter of M-E-V-G-, 26 I. & N. Dec. at 243.
Equally mistaken is the majority’s assertion that the
Attorney General in Matter of A-B- “faulted the BIA[]” in
Matter of A-R-C-G- for not considering the petitioner’s
proposed social group without its reference to harm. Maj.
Op. 29. In Matter of A-B-, the Attorney General was
certainly not instructing the BIA to ignore a reference to harm
and to come up with an “otherwise cognizable” social group
using some of the other characteristics the petitioner brought
forth.
To the contrary, when the Attorney General in Matter of
A-B- faulted the BIA in Matter of A-R-C-G- for “avoid[ing]
considering whether [the petitioner] could establish the
existence of a cognizable particular social group without
defining the group by the fact of persecution,” it was because
the government in Matter of A-R-C-G- “conceded” that the
petitioner there was a member of a cognizable social group.
Matter of A-B-, 27 I. & N. Dec. at 334. The BIA’s error in
Matter of A-R-C-G- was in accepting that concession without
any further inquiry. Id. And had the BIA “properly analyzed
the issues,” Matter of A-B- went on, it would have been “clear
that the particular social group was not cognizable.” Id.
68 DIAZ-REYNOSO V. BARR
(emphasis added). As a result, whether petitioner here
included an “inability to leave” in her proposed group by
mistake or not, it is part of the group as she has defined it, and
such a group is not valid under the anti-circularity principle.
Id. at 334–35.
Of course, it is highly doubtful that the petitioner’s
inclusion of “unable to leave” in her group definition was a
mistake. Had petitioner omitted this phrase, and advanced
only the remaining portions of her proposed group
(“indigenous women in Guatemala”), that may have made it
more difficult for her to meet other requirements for a
particular social group, most notably “particularity” and
“social distinction.” As the First Circuit recently recognized,
the inclusion of “‘unable to leave’ in the group definition”
was likely a response to “[s]ome case law [that] gave rise to
a fear that ‘women,’ or ‘women in country X,’ or even
‘women in a domestic relationship,’ might be too large or too
indistinct a group to serve as a particular social group.” De
Pena-Paniagua v. Barr, 957 F.3d 88, 95 (1st Cir. 2020)
(collecting cases); see also Matter of A-B-, 27. I. & N. Dec.
at 336 (explaining that applicants sought “to avoid
particularity issues by defining a narrow class—such as
‘Guatemalan women who are unable to leave their domestic
relationships where they have children in common’”).
In fact, it was Matter of A-R-C-G-—the very case that
Matter of A-B- overruled—that “held out ‘unable to leave’ as
a supposedly smaller, better-suited safe harbor for women
seeking asylum and withholding of removal.” De Pena-
Paniagua, 957 F.3d at 95. In other words, the petitioner here
almost certainly defined her proposed social group as she did
to match what the BIA in Matter of A-R-C-G- then regarded
as cognizable. The problem is that the Attorney General has
DIAZ-REYNOSO V. BARR 69
since overruled Matter of A-R-C-G- and held “that the
particular social group [there] was not cognizable.” Matter
of A-B-, 27 I. & N. Dec. at 334.
In short, the majority’s suggestion that we can ignore the
petitioner’s reference to harm in her proposed social group is
contrary to settled law. The same is true of the majority’s
determination that we can extract the reference to harm from
the definition of the group and treat is as relevant only to the
social distinction requirement. Today’s decision breaks new
ground in suggesting that any of this is permissible.
C
The majority’s analysis in Parts V.A–B treated a
reference to harm in the definition of a proposed social group
as permissible under Matter of A-B-. In Part V.C, the
majority concludes that the BIA erred in dismissing
petitioner’s appeal because the BIA “assumed her inability to
leave her relationship was attributable to domestic violence,”
when “[t]here are many reasons a petitioner might be unable
to leave a relationship, including a variety of cultural,
societal, religious, economic, or other factors.” Maj. Op.
33–34, 34 n.11 (quotations omitted). The majority holds that
the BIA “avoided the case-specific inquiry demanded by
Matter of A-B-” and failed to “carefully analyze[]”
petitioner’s claim because it “assumed that domestic violence
was the only reason [petitioner] was unable to leave her
relationship.” Id. at 33–34, 36.
I will explain why this is mistaken momentarily. But it is
first important to point out that this rationale is inconsistent
with the rationales in Parts V.A–B. The import of Part V.C
is that if “inability to leave” were based on the harm, the BIA
70 DIAZ-REYNOSO V. BARR
could have denied petitioner’s appeal on this basis as
impermissibly circular. By the logic of this rationale, the
problem instead is that here “inability to leave” may not be
based on harm but on other factors, and the BIA erred by not
considering that possibility.
But if a particular social group can reference harm in the
group definition, then a remand for the reasons given in Part
V.C is unnecessary. Under Parts V.A–B of the majority
opinion, the BIA should be instructed to treat the proposed
group as written as non-circular and to analyze the group only
for its compliance with the other requirements (e.g.,
particularity and social distinction). If the BIA can just
ignore the reference to harm in the proposed group (as a
mistake or otherwise) and treat it as relevant only to social
distinction or some other requirement, there is no reason for
the BIA to now consider whether “inability to leave” may be
a reference to something other than the harm alleged.
Instead, the BIA should be instructed to excise “inability to
leave” and consider whether the proposed social group is
“otherwise cognizable.”
Or we can think of it this way: imagine the BIA had not
made the supposed error that the majority identifies in Part
V.C of its opinion and had even more explicitly regarded
“inability to leave” as based on harm. In that circumstance,
wouldn’t the BIA still have erred under Parts V.A–B of the
majority opinion? The answer apparently is “yes,” because
the majority says that one of the “problems with the BIA’s
reasoning” below is that “the BIA misunderstood Matter of
A-B-’s holding.” Maj. Op. 33. That reasoning would seem to
necessitate a remand separate and apart from any particular
arguments petitioner may have advanced to the BIA about
DIAZ-REYNOSO V. BARR 71
whether her “inability to leave” was based on something
other than domestic violence. Id. at 33.
Regardless, the majority is wrong to hold the BIA erred
by “assum[ing]” that petitioner’s “inability to leave her
relationship was attributable to domestic violence” and
“avoid[ing] the case-specific inquiry demanded by Matter of
A-B- and the BIA’s precedents.” Maj. Op. 33, 36. Petitioner
herself recognizes in her opening brief that in Matter of A-B-,
the Attorney General “specifically rejected the applicant’s
proposed social group of ‘El Salvadoran women who are
unable to leave their domestic relationships where they have
children in common with their partners.’” (Emphasis added).
Applying Matter of A-B-, which the court today upholds
under Chevron, the BIA here simply considered petitioner’s
specific articulation of her proposed social group under the
governing standards.
The BIA recognized that the petitioner’s proposed social
group was “substantially similar to the group in Matter of
A-R-C-G-.” The BIA at this point cited and incorporated the
decision of the IJ, which made clear that the entire basis for
petitioner’s proposed social group was her fear of domestic
violence. For this reason, the BIA could (and did) determine
that as in Matter of A-B-, “inability to leave” here was
“effectively defined to consist of women . . . who are victims
of domestic abuse because the inability ‘to leave’ was created
by harm or threatened harm.” Matter of A-B-, 27 I. & N. Dec.
at 334; see also Larita-Martinez v. INS, 220 F.3d 1092, 1096
(9th Cir. 2000) (explaining “the presumption” that the BIA
“did review the evidence”).
The BIA thus concluded that—because petitioner’s group
definition contained the same “inability to leave”
72 DIAZ-REYNOSO V. BARR
reference—it “suffer[ed] from the same circularity problem
articulated by the Attorney General in Matter of A-B-.” This
was not a “shortcut[],” as the majority claims, Maj. Op. 33,
but an application of Matter of A-B- of the type that has been
routinely affirmed in other circuits. Nor did the BIA offer a
“one-sentence analysis,” as the majority claims. Maj. Op. 32.
The BIA opinion devoted several paragraphs to this issue and
also incorporated two pages of the IJ’s decision.
The majority is thus incorrect in asserting that the BIA
here “committed the very same error it made in Matter of A-
B-.” Maj. Op. 35. Again, the fatal misstep identified in
Matter of A-B- was that the BIA in Matter of A-R-C-G- relied
on concessions to hold a similar proposed group was
cognizable. Matter of A-B-, 27 I. & N. Dec. at 334. In
contrast, the BIA here did the opposite of what the BIA did in
Matter of A-R-C-G-, because here it evaluated petitioner’s
proposed social group under the longstanding anti-circularity
principle that Matter of A-B- reaffirmed. It is hard to
understand why the BIA was required to say more when
petitioner’s claim clearly failed for a specific reason. As the
Fifth Circuit explained in denying a petition with a materially
identical proposed social group to the one here, “[a]s an
adjudicatory body, the BIA necessarily relies on established
precedents to decide matters pending before it and to avoid
re-inventing the wheel every time.” Gonzales-Veliz, 938 F.3d
at 232. And the “BIA did not blindly apply A-B- as a
categorical ban” when “A-B-’s substantive reasoning
happened to squarely foreclose [the petitioner’s] group.” Id.
Of course, even allowing that the vague phrase “unable to
leave” could be based on something other than harm (such as
cultural factors), I am hard-pressed to understand how the
BIA was supposed to derive that nuance from petitioner’s
DIAZ-REYNOSO V. BARR 73
brief to the BIA. Relying on Matter of A-R-C-G-, petitioner’s
counseled brief in the BIA argued that the proposed social
group “‘married women in Guatemala who are unable to
leave their relationship’ may share an immutable trait, where
specific facts demonstrated a woman’s inability to leave her
abusive marriage.” (Emphasis added). Petitioner’s brief to
the BIA then discussed the “repugnant abuse” and “weekly
beatings” at issue in Matter of A-R-C-G- and compared them
to petitioner’s own experience, explaining that petitioner
“[s]imilarly” “demonstrated that she suffered deplorable harm
and abuse by her ‘common law’ husband.” Contrary to the
majority opinion, the BIA thus did not “pluck[] one fact
identified by [petitioner]—that her husband physically abused
her.” Maj. Op. 35. This abuse was the central thrust of
petitioner’s entire submission to the BIA.
The majority opinion nevertheless states that the
petitioner “advanced evidence of economic, societal, and
cultural factors that also may have prevented her from leaving
her relationship.” Maj. Op. 34. But what the majority cites
for this are pages from the petitioner’s brief to the IJ, which
extensively discuss how the “inability to leave” is based on
domestic violence. To the extent petitioner and her expert
cited societal and cultural factors in Guatemala before the IJ,
they repeatedly intermixed them with domestic violence
itself. In other words, petitioner’s own application thus
specifically wove domestic violence into its identification of
the proposed group, at a time when Matter of A-R-C-G- was
the prevailing BIA precedent. But in all events, petitioner
certainly did not present “inability to leave” as a concept
distinct from the harm itself. And presenting the proposed
group in that way would likely have created problems for
other aspects of petitioner’s required showing, such as social
distinction and nexus.
74 DIAZ-REYNOSO V. BARR
Under all these circumstances, I cannot fault the BIA for
not divining an interpretation of “inability to leave” that
petitioner did not clearly advance. On this point, this court
reviews denials of withholding of removal “for substantial
evidence.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017) (quotations omitted). “Under the substantial
evidence standard, the court upholds the BIA’s determination
unless the evidence in the record compels a contrary
conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.
2007). Given the (at best) imprecise nature of the phrase
“inability to leave” and the record in this case, I cannot
conclude that the BIA’s assessment that the proposed social
group was effectively defined by the harm lacks substantial
evidence.5
Finally, the majority errs in premising its own remand on
the BIA’s remand in Matter of A-B-. According to the
majority, “the best indication that [mention of physical abuse]
does not categorically disqualify [petitioner’s] social group is
that the Attorney General remanded Matter of A-B- for the
BIA to conduct a proper analysis, . . . [r]ather than simply
invalidating th[e] group.” Maj. Op. 35. This is not correct.
5
The majority relies on De Pena-Paniagua v. Barr, 957 F.3d at 94,
for the proposition that “[t]here are many reasons a petitioner might be
unable to leave a relationship, including a variety of ‘cultural, societal,
religious, economic, or other factors.’” Maj. Op. 34 n.11. But for this
observation, the First Circuit cited Matter of A-R-C-G-, see De Pena-
Paniagua, 957 F.3d at 94, which the Attorney General of course overruled
in Matter of A-B-. In all events, De Pena-Paniagua theorized that “a
woman’s inability to leave a relationship may be the product of forces
other than physical abuse.” Id. at 93. The question in this case is whether
the record supports such a characterization of the proposed social group.
For the reasons set forth above, the record does not compel the conclusion
that the BIA erred in construing the petitioner’s proposed group in the way
that it did.
DIAZ-REYNOSO V. BARR 75
The Attorney General in Matter of A-B- was unequivocal that
“[h]ad the [BIA] properly analyzed the issues” in Matter of A-
R-C-G-, “then it would have been clear that the particular
social group was not cognizable.” Matter of A-B-, 27 I. & N.
Dec. at 334 (emphasis added). The Attorney General in
Matter of A-B- was therefore not somehow suggesting that
the BIA in any further proceedings that may occur in Matter
of A-B- itself could somehow treat as cognizable the very
proposed social group that Matter of A-B- expressly rejected.
The standard remand language in Matter of A-B- “for further
proceedings consistent with this opinion,” id. at 346, should
thus not be construed as a basis for our court to remand a
petition where the BIA complied with Matter of A-B-.
* * *
In upholding the Attorney General’s decision in Matter of
A-B-, we should have faithfully interpreted it. And in
reviewing the BIA’s decision applying Matter of A-B- to
petitioner’s application, we should have recognized the BIA’s
adherence to an Attorney General decision that is itself based
on longstanding precedent and at the very least reasonable.
The Attorney General in Matter of A-B- emphasized that
under the INA, claims for asylum and withholding of removal
based on domestic violence “are unlikely to satisfy the
statutory grounds for proving group persecution.” 27 I. & N.
Dec. at 320. Today’s decision does not directly quarrel with
that understanding, but it sets forth an internally inconsistent
analytical framework that is at odds with it, and also at odds
with how other circuits have handled this issue.
Where all of this will lead is uncertain. The majority’s
opinion remands this case “for further consideration” so the
BIA can conduct a “case-specific inquiry” under “the
76 DIAZ-REYNOSO V. BARR
required framework.” Maj. Op. 37, 39, 40. The BIA can be
forgiven if it finds this directive unclear. The only certainty
is that these issues will be before us again, as the BIA tries to
comply with both Matter of A-B- and today’s ruling. I
respectfully dissent.